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The Flow of Documents in a Minnesota Divorce

 

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Note: This is a companion piece to "A Self-Represented Person's Odyssey in Divorce Court" which is a narrative of the divorce experience in Minnesota from a self-represented person's point of view.

 

Click here for quick passage to these documents:

wife's filing for divorce | trial order| judge's trial order | judge's decision on post-trial motions | Minn. Court of Appeal decision 
 

 

 

INDEX OF SECTIONS

(A) CASE SUMMARY

(B) INITIAL FILINGS

(1) Petition for Dissolution of Marriage (March 8. 2011)

(2) Answer and Counterpetition for Dissolution of Marriage (March 16, 2011)

(3) Affidavit of Service for Response to Petition for Dissolution of Marriage (March 25, 2011)

(4) Notice of Judicial Assignment and order Setting Initial Case Management Conference (March 23, 2011)

(5) Notice of Appearance (for Respondent) (April 4, 2011)

(C) COURT PROCEDURES TO SETTLE DIVORCE ISSUES

(6) Order For Financial Early Neutral Evaluation (May 5, 2011)

(7) Prehearing Conference Order (August 19, 2011)

(8) Petitioner’s Prehearing Statement (September 2011)

(9) Respondent’s Prehearing Statement (September 26, 2011)

(10) Trial Order (October 18, 2011)

(D) THE PARTIES’ EFFORTS TO SETTLE DIVORCE ISSUES

(11) Points of Agreement between the Parties (November 1, 2011)

(12) Petitioner’s Attorney’s Version of the Agreement, as Amended by the Parties in Discussion with two friends (December 20, 2011)

(E) PETITIONER’S MOTION FOR TEMPORARY RELIEF

(13) Petitioner’s Application for Temporary Relief Without Children (January 4, 2-12)

(14) Respondent’s Reply to Petitioner’s Application for Temporary Relief Without Children (January 4, 2012)

(15) The Referee’s Decision regarding Temporary Maintenance (March 18, 2012)

(F) RESPONDENT’S COMPLAINT AGAINST PETITIONER’S ATTORNEY

(16) Complaint of Respondent against Petitioner’s attorney at the Minnesota Office of Lawyers Professional Responsibility (February 9, 2012)

(G) THE DISCOVERY PROCESS

(17) Petitioner’s Interrogatories (March 14, 2012)

(18) Petitioner’s Request for Production of Documents (March 14, 2012)

(19) Respondent’s Interrogatories (April 30, 2012)

(20) Respondent’s Motion for Production of Documents (March 18, 2012)

(21) Respondent’s Motion for a Discovery Conference (April 6, 2012)

(H) PREPARATIONS FOR TRIAL AND TRIAL DECISION

(22) Partial Settlement Agreement (May 1, 2012)

(23) Petitioner’s Exhibit List (May 7, 2012)

(24) Respondent’s Documents to be presented at trial (May 7, 2012)

(25) The trial-court judge’s decision (July 20, 2012)

(I) RESPONDENT’S POST-TRIAL MOTIONS AND COURT DECISION

(26) Post-Trial Motion for Amended Findings of Fact/ Conclusions of Law or, Alternatively, a New Trial (August 20, 2012)

(27) Respondent’s Motion for a Stay of Execution (August 28, 2012)

(28) Petitioner’s Motion and Affidavit in response to Respondent’s Motion for a Stay of Execution (September 6, 2012)

(29) Respondent’s Affidavit in Response to Petitioner’s Motions (September 11, 2012)

(30) Petitioner’s Affidavit in support of her Motion September 19, 2012

(31) Respondent’s Affidavit in Response to Petitioner’s Affidavit (September 21, 2012)

(32) The Judge’s Order Regarding Stay of Execution (September 24, 2012)

(33) Petitioner's New Motion before Hearing on Respondent's Post-Trial Motion for Amended Findings of Fact/ Conclusions of Law or , alternatively, a New Trial (September 29, 2012)

(34) Respondent’s Affidavit in Response to Petitioner’s Motion and Affidavit (September 30, 2012)

(35) Petitioner’s Motion and Memorandum of Law (October 3, 2012)

(36) Respondent’s Memorandum for the October 8, 2012 hearing on Respondent’s Post-Trial Motions (October 8, 2012)

(37) The Trial-Court Judge’s Decision regarding Respondent’s Post-Trial Motion for Amended Findings of Fact/ Conclusions of Law or, Alternatively, a New Trial (December 28, 2012)

 

(J) RESPONDENT’S APPEAL TO MINNESOTA COURT OF APPEALS AND COURT DECISION

(38) Notice of Appeal to the Minnesota Court of Appeals (February 20, 2013)

(39) Appellate Court Mediation order (February 22, 2013)

(40) Petitioner’s New Attorney’s Clarification Statement (March 6, 2013)

(41) Appellate Court Order Vacating Stay of Appeal (April 26, 2013)

(42) Appellant’s Brief Sent to the Minnesota Court of Appeals (August 7, 2013)

(43) Respondent’s Reply Brief for Court of Appeals (September 9, 2013)

(44) Appellant’s Reply Brief for Court of Appeals (September 16, 2013)

(45) Notice of Nonoral Conference (September 18, 2013

(46) Decision of Minnesota Court of Appeals (January 13, 2014)

 

(K) RESPONDENT’S APPEAL TO MINNESOTA SUPREME COURT AND COURT DECISION

(47) Appeal to the Minnesota Supreme Court (February 5, 2014)

(48) Response to Petition for Review of Decision of Court of Appeals (March 2, 2014)

(49) Decision of the Minnesota Supreme Court (March 18, 2014)

 

(L) RESPONDENT’S MOTION TO ELIMINATE SPOUSAL MAINTENANCE AND COURT DECISION

(50) Respondent’s Motion to Modify Spousal Maintenance (September 25, 2014)

(51) Petitioner’s Response to Respondent’s Motion to Modify Spousal Maintenance (November 1, 2014)

(52) Respondent’s Response to Petitioner’s Motion to Modify Spousal Maintenance (November 24, 2014)

(53) Judge’s decision in motion to amend spousal maintenance (January 27, 2015)

(M) RESPONDENT’S MOTION FOR AMENDED FINDINGS OF FACT/ CONCLUSIONS OF LAW REGARDING COURT DECISION

(54) Respondent’s Motion for Amended Findings of Fact and Order relating to Modification of Spousal Maintenance (February 12, 2015)

(55) Response to Respondent’s Motion for Amended Findings of Fact and Order Relating to Modification of Spousal Maintenance (March 17, 2015)

(56) Respondent’s Response to Petitioner’s Motion to Modify Spousal Maintenance and Affidavit (March 21, 2015)

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(A) CASE SUMMARY

This is a case of divorce not involving children. Property division was the issue. A 56-Year-old Chinese-born wife filed for divorce against her 70-Year-old Euro-American husband on March 8, 2011. The case was settled on March 18, 2014, when the Minnesota Supreme Court denied husband’s petition to review a decision of the Minnesota Court of Appeals. The husband later sought to eliminate spousal maintenance on the basis of sharply increased expenses when his debt was put under a debt-management program. The trial-court judge denied the motion.

The wife was continuously represented by an attorney, two of them. After October 2011, the husband was self-represented. This narrative tells the complete story of the divorce from the husband’s point of view. The names have been changed to protect the reputation of the participants.

The dispute centered on the division of property - the division of marital property (mostly debt), an award of spousal maintenance, and invasion of the husband’s non-marital property.
An allegation of marital misconduct played a part in this case, despite statutory requirements that such factors not be considered. The husband was twice arrested and jailed for domestic abuse. There was also a claim of dissipated marital assets. There were two unproductive mediation sessions.

This three-year case included often rancorous settlement negotiations between the parties, a motion for temporary relief, a two-day trial with the chief judge of Hennepin County presiding, the husband’s post-trial motions to amend the judge’s findings of fact/conclusions of law or in the alternative grant a new trial, an unsuccessful attempt to obtain a supersedeas bond, two fruitless court-ordered settlement conferences, an appeal to the Minnesota Court of Appeals by the husband which was partially successful, an appeal to the Supreme Court which was denied, and a still incomplete effort to eliminate spousal maintenance.

A section near the end gives the author’s opinion of persons, institutions, and the divorce process in Minnesota. The concluding section tells what readers might learn from the book in terms of legal rules, processes and experiences.

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

 

(B) INITIAL FILINGS

 

(1) Petition for Dissolution of Marriage (March 8. 2011) See divorcebook.html, chapter 5.

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of:
Rose Fen Mack
Petitioner

PETITION FOR DISSOLUTION OF MARRIAGE

and

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent File No. ____________________

__________________________________________________________________

Petitioner, Rose Fen Mack, for her Petition in this proceeding states and alleges:

I.

The true and correct name of the Petitioner is Rose Fen Mack. Prior to marriage she was known as Ying Min and an alias of Rose Ying Mack. She is not known by any other name. Currently she is residing at 1702 Glenwood Avenue in Minneapolis, Minnesota, with a zip code of 55405. Petitioner’s social security number is provided for in the Confidential Information Form.

II.

Petitioner is currently represented by Su-Mei K. Ming, Attorney at Law, through The Kang Ming Law Firm, located at 8XXX Wayzata Boulevard, Suite 320, in Golden Valley, Minnesota, 55426.

III.

The true and correct name of respondent is Chester Arthur Mack, Junior. He is also known as Chet Mack or Chester A. Mack. To Petitioner’s knowledge and belief, he is not known by any other name. To the best of Petitioner’s knowledge, Respondent currently resides at 1335 93rd Avenue North, Brooklyn Park, MN 55444. His social security is provided for in the Confidential Information Form.

IV.

Petitioner was born on April 5, 1956 and is fifty five (55) years old. Respondent was born on February 21, 1941 and is seventy (70) years old.

V.

Petitioner and respondent were issued a marriage certificate on January 28, 2000 in the city of Beijing, in the country of People’s Republic of China. They have been husband and wife since the day of their marriage.

VI.

Petitioner has resided in this state and Hennepin county for not less than 180 days (six consecutive months) immediately preceding the commencement of this proceeding.

VII.

Neither party is a member of any branch of the United States military. Neither party is entitled to any relief under the Service Members Civil Relief Act, as amended.

VIII.

The parties have no joint minor children. Rose Fen Mack has a child, who is of majority age, Violet Yue Mack, and is not subject to this proceeding.

IX.

Petitioner is not now pregnant.

X.

The marriage has not previously been dissolved and no separate proceeding for dissolution legal separation, or custody is pending in any court in this state or elsewhere.

XI.

Petitioner has filed for a divorce in good faith.

XII.

There has been an irretrievable breakdown on the marriage relationship within the meaning of Minn. Stat. § 518.06.

XIII.

The parties have been separated since February 18, 2011, in connection to a current and pending case, regarding Case Number 27CR115037, however Respondent may be allowed back into their marital home.

XIV.

Petitioner is not now employed outside the home. Petitioner has been diagnosed by a licensed physician with cancer and seeks medical assistance, among other illnesses, requiring medical attention. Prior to this, she was diagnosed with a different kind of cancer and required chemotherapy, among other illnesses. Due to her physical illness, she was unable to obtain gainful employment. However, Petitioner receives approximately $280.00, net income, per month of social security from People’s Republic of China. Petitioner’s reasonable living expenses for herself are currently unknown to Petitioner; however, it will be a higher amount due to a possibility that she may not be able to obtain affordable health insurance. Petitioner will relocate because of her illnesses and her reasonable living expenses will increase, however it is unknown to Petitioner at this time.

XV.

The Respondent is currently retired.

XVI.

Respondent’s monthly expenses are currently unknown to Petitioner.

XVII.

Petitioner is not covered by appropriate medical health insurance, but requires medical assistance. Due to her husband’s financial circumstances, she currently does not qualify for medical assistance. The cost of the medical insurance is currently unknown. She is also not covered with vision and dental insurance.

XVIII.

Upon information and belief, respondent is covered with medical health, vision, and dental insurance. However, the insurance information is unknown at this time.

XIX.

Petitioner is not capable of being self-supporting and is in need of an award of spousal support from respondent.

XX.

Respondent is capable of being self-supporting and is not in need of an award of spousal support from petitioner.

XXI.

Upon information and belief, the parties have joint debts that incurred during the marriage. The amount of debt is unknown at this time.

XXII.

Upon information and belief, the parties have separate debts throughout the marriage. The amount of debt is unknown at this time.

XXIII.

Petitioner owns and posses a rusted 1995 Mercury worth approximately $200 in need frequent mechanical repairs. Respondent no longer owns and possesses a car, this vehicle is unencumbered.

XXIV.

The parties do not own any real property jointly and all the real property, except Number 6 and 7, was acquired prior to marriage. Unless specifically stated, the parties do not have any existing liens or encumbrances on the following real property:

Upon information and belief, Petitioner states Respondent owns:

A house and land at 100 Sawkill Avenue, Milford, Pennsylvania, the value is currently unknown, and the legal description is unknown to Petitioner at this time.

2. A four-plex at 1702 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s Addition to Minneapolis, Minnesota;

This property is subject to a term of ten (10) years’ mortgage obtained on December 10, 2010, where the principal line of credit received was $86,300.00 where the debt is joint, the current balance owned is unknown to Petitioner at this time.

A nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

Block 16, Lots 6 and 7, Maben, White LeBron’s Addition to Minneapolis.

4. A duplex at 1715 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

The front or Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

This property is subject to a term of thirty (30) years’ mortgage obtained on November 29, 2007 in the amount of $182,000.00 where the debt is joint, the current amount remaining is currently unknown to Petitioner at this time.

5. Real estate at 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

The North 138 feet of the East 42 1/2 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin county, except the East 2.0 feet thereof.

A vacant lot by 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26 Hennepin county, Minnesota.

40 acres and log cabin in Orienta Township, County of Bayfield, near Port Wing Wisconsin, the value is unknown at this time, the legal description is:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

Petitioner owns:

A condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552, the legal description is unknown at this time to Petitioner. To Respondent’s information and belief, the property is worth approximately $220,000.

XXV.

Petitioner owns a diamond ring, her wedding ring, worth approximately $700. Respondent owns a celluloid print of Dynamoe signed by Wunderlix with the current value unknown. Each party owns miscellaneous household goods and furniture.

XXVI.

Petitioner currently has a 401k retirement worth approximately $5,000.00 earned during the marriage. Respondent’s retirement accounts are currently unknown to Petitioner at this time, however, upon information and belief, Respondent worked at Metro Transit as an Accounting Manager before entering into retirement, and may have retirement associated with his previous career.

XXVII.

Petitioner and Respondent own bank accounts jointly and individually, incurred prior to marriage and during marriage. Petitioner does not have sufficient information at this time regarding Respondent’s accounts.

XXVIII.

Upon information and belief, respondent owns common stocks in Wachovia bank, Xcel Energy, Pacific Gas & Electric, Target Corp., Gannett, US Bank, and Germany Fund.

XXIX.

As of now, Petitioner is not in need of a protective order for herself.

WHEREFORE, Petitioner requests that the Court:

Dissolve the marriage of the parties.

Order respondent to obtain and maintain appropriate medical, vision, and dental insurance for the petitioner.

Order respondent pay for petitioner’s attorney’s fees.

Grant temporary and permanent spousal maintenance to petitioner, and deny temporary and permanent spousal maintenance to respondent.

Order that each party be responsible for his or her separately incurred debts, incurred since the parties’ separation, and order that each hold the other harmless from any current and future responsibility of any separately incurred debts.

Make a just and equitable disposition of the marital property of the parties.

Order an equitable division of the real property of the parties.

Award petitioner an equitable portion of respondent’s stocks and other bank accounts.

Order respondent to be solely responsible for respondent’s own temporary and permanent attorneys’ fees and costs incurred in this proceeding, without any contribution thereto on the part of the other.

Provide such other relief as the Court deems appropriate in the circumstances.

Dated: March 8, 2011
________________________

Su-Mei K. Ming
Attorney ID#XXXXXXX
Attorney for Petitioner
The Kang Ming Law Firm
8XXX Wayzata Blvd. Suite 320
Golden Valley, MN 55426
885-XXXX

Another document accompanied the above. It read:

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of:
Rose Fen Mack
Petitioner and SUMMONS

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent File No. ____________________

__________________________________________________________________
THE STATE OF MINNESOTA TO THE ABOVE-NAMED RESPONDENT:

You are hereby summoned and required to serve upon petitioner’s attorney an answer to the petition that is served upon you together with this summons within thirty (30) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition.

The object of this action is for the dissolution of marriage.

The above-captioned action involves, affects or brings into question the title to or some interest in real property described as:

The parties do not own any real property jointly and all the real property, except Number 6 and 7, was acquired prior to marriage. Unless specifically stated, the parties do not have any existing liens or encumbrances on the following real property:

Upon information and belief, Petitioner states:

A house and land at 100 Sawkill Avenue, Milford, Pennsylvania, the value is currently unknown, and the legal description is unknown to Petitioner at this time.

A four-plex at 1702 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s Addition to Minneapolis, Minnesota;

This property is subject to a term of ten (10) years’ mortgage obtained on December 10, 2010, where the principal line of credit received was $86,300.00 where the debt is joint, the current balance owned is unknown to Petitioner at this time.

A nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

Block 16, Lots 6 and 7, Maben, White LeBron’s Addition to Minneapolis.

4. A duplex at 1715 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

The front or Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

This property is subject to a term of thirty (30) years’ mortgage obtained on November 29, 2007 in the amount of $182,000.00 where the debt is joint, the current amount remaining is currently unknown to Petitioner at this time.

5. Real estate at 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

The North 138 feet of the East 42 1/2 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin county, except the East 2.0 feet thereof.

A vacant lot by 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently known to Petitioner at this time, the legal description is:

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26 Hennepin county, Minnesota.

40 acres and log cabin in Orienta Township, County of Bayfield, near Port Wing Wisconsin, the value is unknown at this time, the legal description is:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

A condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552, the legal description is unknown at this time to Petitioner. To Respondent’s information and belief, the property is worth approximately $220,000.

NOTICE OF TEMPORARY RESTRAINING PROVISIONS

UNDER MINNESOTA LAW, SERVICE OF THIS SUMMONS MAKES THE FOLLOWING REQUIREMENTS APPLY TO BOTH PARTIES TO THIS ACTION, UNLESS THEY ARE MODIFIED BY THE COURT OR THE PROCEEDING IS DISMISSED:

(1) NEITHER PARTY MAY DISPOSE OF ANY ASSETS EXCEPT (i) FOR THE NECESSITIES OF LIFE OR FOR THE NECESSARY GENERATION OF INCOME OR PRESERVATION OF ASSETS, (ii) BY AN AGREEMENT IN WRITING, OR (iii) FOR RETAINING COUNSEL TO CARRY ON OR CONTEST THIS PROCEEDING.

NEITHER PARTY MAY HARASS THE OTHER PARTY; AND

ALL CURRENTLY AVAILABLE INSURANCE COVERAGE MUST BE MAINTAINED AND CONTINUED WITHOUT CHANGE IN COVERAGE OR BENEFICIARY DESIGNATION.

IF YOU VIOLATE ANY OF THESE PROVISIONS, YOU WILL BE SUBJECT TO SANCTIONS BY THE COURT.

PARTIES TO A MARRIAGE DISSOLUTION PROCEEDING ARE ENCOURAGED TO ATTEMPT ALTERNATIVE DISPUTE RESOLUTION PURSUANT TO MINNESOTA LAW. ALTERNATIVE DISPUTE RESOLUTION INCLUDES MEDIATION, ARBITRATION, AND OTHER PROCESSES AS SET FORTH IN THE DISTRICT COURT RULES. YOU MAY CONTACT THE COURT ADMINISTRATION ABOUT RESOURCES IN YOUR AREA IF YOU CANNOT PAY FOR MEDIATION OR ALTERNATIVE DISPUTE RESOLUTION, IN SOME COUNTIES, ASSISTANCE MAY BE AVAILABLE TO YOU THROUGH A NONPROFIT PROVIDER OR A COURT PROGRAM. IF YOU ARE A VICTIM OF DOMESTIC ABUSE OR THREATS OF ABUSE AS DEFINED IN MINNESOTA STATUTES CHAPTER 518B, YOU ARE NOT REQUIRED TO TRY MEDIATION AND YOU WILL NOT BE PENALIZED BY THE COURT IN LATER PROCEEDINGS.

Dated: March 8, 2011
________________________

Su-Mei K. Ming
Attorney ID#XXXXXXX
Attorney for Petitioner
The Kang Ming Law Firm
8XXX Wayzata Blvd. Suite 320
Golden Valley, MN 55426
885-XXXX

There was also a notarized “verification” which read as follows:

VERIFICATION

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

Petitioner, Rose Fen Mack, being duly sworn, says that she has read the foregoing Petition, that the allegations made in the Petition are true, except that those allegations made upon information and belief, and she believes those allegations to be true as well.

_______signed______
Rose Fen Mack

Subscribed and sworn to before me
this 8 day of March

__________________
Notary Public

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(2) Answer and Counterpetition for Dissolution of Marriage (March 16, 2011) See divorcebook.html, chapter 6.

_________________________________________________________________
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of:

Rose Fen Mack
Petitioner

ANSWER AND COUNTERPETITION FOR DISSOLUTION OF MARRIAGE

and

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent File No. ____________________

__________________________________________________________________

Respondent, Chester Arthur Mack, Junior, for his Response in this proceeding states and alleges:

Respondent admits paragraphs I, II, III, IV, V, VII, VIII, IX, X, XI, XII, XIII, XV, XVI, XXI, XXV, XXIX.

Respondent denies, all or in part, paragraphs VI, XIV, XVII, XVIII, XIX, XX, XXII, XXIII, XXIV, XXVI, XXVII, XVIII.

WHEREFORE, Respondent requests that the Court:

Dissolve the marriage of the parties.

Order each party to be responsible for his or her own medical bills.

Order each party to pay his or her own attorney’s fees.

Deny temporary and permanent spousal maintenance to petitioner and to respondent.

Order that each party be solely responsible for his or her separately incurred debts, incurred since the parties’ separation on February 18, 2011.

Make a just and equitable disposition of the marital property and debt of the parties including the remaining portion of the proceeds of an apartment unit in Beijing, China, sold by the petitioner in 2010.

Allow each party to retain sole possession of his or her premarital property.

Order petitioner and respondent to be solely responsible for his or her own temporary and permanent attorney’s fees and costs incurred in this proceeding.

In the alternative, order whatever payment or property settlement may be reached by agreement between the two parties.

Provide such other relief as the Court deems appropriate in the circumstances.

Dated: March 16, 2011

___________________________
Chester A. Mack, Jr.
respondent

I also submitted a notarized “Verification”:

VERIFICATION

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

Respondent, Chester Arthur Mack, being duly sworn, says that he has read the foregoing response, that the allegations made in the Response are true, except for those allegations made upon information and belief, and he believes those allegations to be true as well.

_______signed______
Chester Arthur Mack

Subscribed and sworn to before me
this 16 day of March, 2011

__________________
Notary Public

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(3) Affidavit of Service for Response to Petition for Dissolution of Marriage (March 25, 2011) See divorcebook.html, chapter 6.

STATE OF MINNESOTA DISTRICT COURT
FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION

Case Type: Dissolution without Children

In Re: the Marriage of

Rose Fen Mack

Petitioner,

and RESPONSE TO PETITION FOR
DISSOLUTION OF MARRIAGE

Chester Arthur Mack, Junior,
Also known as Chet Mack, and
Chester A. Mack,

Respondent
File No. ___________

_____________________________________________________________________

AFFIDAVIT OF SERVICE

I have served upon the attorney of Rose Fen Mack, petitioner, the response to the petition by respondent, Chester Arthur Mack This response was served upon attorney Su-Mei K. Ming (attorney ID #XXXXXXXXX) at her office at 8XXX Wayzata Blvd., Suite 320, Golden Valley, MN 55426. Served on Judy Laise in above-mentioned law office.

_________________________
Joe J. Nelson

Subscribed and sworn to before me

this 25 day of March, 2011 [seal]

 

_____________________
Notary Public

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(4) Notice of Judicial Assignment and order Setting Initial Case Management Conference (March 23, 2011) See divorcebook.html, chapter 6.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT


Notice of Judicial Assignment and Order Setting
Initial Case Management Conference

Court File Number: 27-FA-11-XXXX
Chester Mack
1335 93RD AVE N
BROOKLYN PARK, MN 55444
Case Type: Dissolution without Child

__________________________________________________________________

In re the Marriage of Rose Fen Mack vs Chester Arthur Mack

Date case filed: March 18, 2011 Date of notice: March 23, 2011

Your case is assigned to Referee Susan M. Raleigh.

Your Initial Case Management Conference is scheduled for April 15, 2011 at 10:30 AM in FJC 517, Family Justice Center, 110 South 4th Street, Minneapolis, MN 55401

The purpose of the Conference is to meet with your judicial officer to discuss the issues in your case (custody, parenting schedules, financial support, allocation of assets and debts, etc.) You will learn about the programs available for helping you reach agreements on these issues without a trial. No motions will be heard but any issues agreed to will be memorialized in an Order. At the conference, the issues in the case may be discussed, a discovery schedule may be agreed to, alternative dispute resolution may be arranged, studies, appraisals and evaluations may be ordered, and in some cases a temporary hearing and or/ trial date may be set.

At least 3 days before the Conference, you must submit the Conference Data Sheet and related information to the Court and provide a copy to your spouse/spouse’s attorney, This information is for use at the Conference only and is not evidence for purposes of a trial.

If you need an interpreter ordered, if your case has reached full agreement, or if you have any questions regarding the scheduling of this Conference, contact Referee Susan M. Raleigh’s clerk at 612-543-1130.

The court currently lists the following as participants in this action:

Rose Fen Mack
1702 Glenwood Ave.
Minneapolis, MN 55405
__________________________

Chester Arthur Mack
1335 93rd Ave. N.
Brooklyn Park, MN 55444
__________________________

Su-Mei Kang Ming
8XXX Wayzata Blvd.
Suite 320
Golden Valley, MN 55426

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(5) Notice of Appearance (for Respondent) (April 4, 2011) See divorcebook.html, chapter 7.

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

NOTICE OF APPEARANCE

and

Chester Arthur Mack, Junior
Respondent

To: THE COURT AND Su-Mei Kang Ming. attorney for Petitioner, 8xxx Wayzata Boulevard, Suite 320, Golden Valley, Minnesota 55426

PLEASE TAKE NOTICE that the undersigned will appear for and represent the Respondent in the above-entitled proceeding.

Dated: April 4, 2011 signed Frederick D. Smith
attorney for Respondent

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

(C) COURT PROCEDURES TO SETTLE DIVORCE ISSUES

(6) Order For Financial Early Neutral Evaluation (May 5, 2011) See divorcebook.html, chapter 8.

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner ORDER FOR FINANCIAL
EARLY NEUTRAL EVALUATION
and

Chester Arthur Mack, Junior
Respondent
_________________________________________________________________

The above-entitled matter came on for Initial Case Management Conference before Referee Susan Raleigh on April 15, 2011.

Su-Mei W. Ming, Esq. appeared for Rose Fen Mack. Frederick D. Smith, Esq. appeared for Chester Arthur Mack, Jr. A Certified Mandarin interpreter was also present.

Based on the agreement of parties and counsel, The Court makes the following:

ORDER

The Court described the Financial Early Neutral Evaluation program made available by Hennepin County Both parties understand the process and advised the Court that they wish to participate in the program.

The parties have chosen Andrea Niemi, Esq., of Niemi, Jerabek and Kretchmer, 510 Marquette Ave., Ste. 200, Minneapolis MN 55402 to perform the Early Neutral Evaluation.

The parties and counsel shall contact and meet with Ms. Niemi for an initial meeting.

An Order for Protection is not in place.

The parties are ordered to provide the Early Neutral Evaluator (“Evaluator”) with a copy of the Petition and Answer (if any), their ICMC Data Sheets, three most recent paycheck stubs, and federal income tax returns for the past three years prior to the initial meeting with the Evaluator. The parties are to cooperate with the Evaluator and shall provide necessary releases in the form requested by the evaluator. The Evaluator shall have the authority to request additional information through the use of informal or formal methods, including, but not limited to, subpoena, deposition, document request or interrogatory.

Except as requested by the Evaluator, discovery is suspended pending completion of the Early Neutral Evaluation.

Evidence produced during the Early Neutral Evaluation process that is not otherwise discoverable remains confidential. Impressions or opinions made by the Evaluator or any other neutral who participates in the process remains confidential.

The Evaluator shall complete his or her evaluation and confer with parties and counsel within 60 days of the initial meeting.

Within 75 days of the date of this Order, the Evaluator shall contact the Court in writing to advise whether or not the parties have settled or request an extension of time to complete the evaluation.

In the event the Early Neutral Evaluator fails to result in settlement,counsel shall contact the Court within five days of the Evaluator to schedule a status call or status conference.

The parties shall pay the Evaluator $50.00 per hour. Upon review of the parties’ financial information, the Evaluator may request an adjustment to his/her hourly rate.

The Evaluator’s fees shall be shared equally between the parties.

Attached an incorporated into this Order is a description of the Hennepin County Family Court Financial Early Neutral Evaluation program.

All prior consistent Orders remain in full force and effect in accord with this Order.

The Clerk of this Court shall fax copies of this Order to the Evaluator and mail copies of this Order to counsel for the parties, or to the parties personally, if pro se. The Court may, in its discretion, send a copy of this Order to the Evaluator by e-mail

BY THE COURT: May 5, 2011

FINDINGS OF FACT AND FINDINGS OF FACT AND
ORDER RECOMMENDED. ORDER APPROVED.

Dated: May 5, 2011 dated:

_____________________ ______________________
Susan Raleigh Laurie Miller, judge of District Court
Referee of District Court, Family Court Division

(Note: After several months, the petitioner’s attorney told the referee that her client no longer wanted the FENE and the order was rescinded.)

 

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(7) Prehearing Conference Order (August 19, 2011) See divorcebook.html, chapter 11.

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner PREHEARING CONFERENCE ORDER

and

Chester Arthur Mack, Junior
Respondent

Counsel for the parties participated in a phone conference with the Court on July 18, 2011. Present for the Petitioner was Su-Mei Kang Ming Esq. Present for the Respondent was Frederick Smith, Esq.

Based on the information provided, the Court makes the following:

ORDER FOR PREHEARING CONFERENCE

1. The parties participated in a phone conference with the Court on July 18, 2011. At this time counsel was to report as to the status of the Financial Early Neutral Evaluation with Zach Kretchmer. The court was informed that the Petitioner no longer wished to participate in the FENE process. Counsel was then given three choices:

a. Attend a settlement conference
b. Set the matter for pretrial
c. Attend Mediation, either through a private mediator or through Family Court Services (in person, as Petitioner was out of the Country)

2. The parties chose the option of mediation with Family Court Services through correspondence to the Court dated July 26, 2011.

3. Upon further review, the Court was informed by Family Court Services that they are unable to mediate pre-decree financial issues.

4. The Court will therefore bring in a private mediator from the community to work with the parties on settling their financial issues. All parties and counsel should be present in person for this mediation.

5. The parties shall prepare for both mediation and a prehearing conference.

6. This case is set for prehearing conference and mediation on October 17, 2011 at 9:00 a.m. in Courtroom 517, Hennepin County Family Justice Center, 110 South Fourth Street, Minneapolis, Minnesota.

7. This is a mandatory conference, which shall be attended by the attorneys who will try the case and by the parties. Attorneys and parties should anticipate mediating the whole day, from 9:00 a.m. to 4:30 p.m.

8. A continuance will not be granted except for the most extraordinary and unforeseeable events. Requests for continuance and reasons therefore must be submitted in writing to the Clerk for the undersigned within ten days of receipt of this Order and a copy of the request furnished to other attorneys of record(or party if not represented). If the prehearing date in this matter is continued, the deadlines set forth herein realign to the new date without further Court Order, with the exception of the discovery deadline which shall remain as set forth herein unless modified by a subsequent Court Order.

9. No later than ten days prior to the conference, the parties shall exchange and file with the Court their prehearing statements or update previously filed prehearing statements with service on all parties.

10. No later than ten days prior to the conference, the attorneys (or parties representing themselves) shall meet in person for the purpose of:

a. stipulating the facts and matters not at issue;
b. attempting to settle outstanding issues; and
c. preparing a list of disputed issues.

This meeting is mandatory and may not be waived. It is recommended but not required that the parties participate in this meeting.

11. Prior to the meeting described above, each attorney shall prepare and exchange at such meeting a complete balance sheet setting forth a proposed division of assets and liabilities of the parties, including the valuations of such assets, and denoting any property claimed to be non-marital.

12. No later than three days before the conference, the attorneys shall exchange written offers of settlement s to each of the disputed issues identified at the meeting described above.

13. No later than two days before the conference, the attorneys shall deliver to Chambers of this Court the documents listed above, with the exception of settlement offers.

14,. In the event the case cannot be settled, counsel shall be prepared to:

a. identify witnesses that are expected to be called and estimate the length of the trial;
b. discuss the prospective proof with regard to any property whose non-marital or marital character is disputed by the parties;
c. discuss the prospective proof with regard to any property whose valuation is disputed;
d. schedule any motions that should be heard prior to trial; and
e. discuss any unusual or disputed evidentiary or legal issues that are anticipated to arise at trial.

15. If a stipulation is reduced to writing prior to the prehearing conference, that case may be heard as a default at the time scheduled for the conference. In that event, only the party obtaining the Decree need appear.

16. Failure to comply with this Order will subject the parties to appropriate sanctions to include striking the pleadings and hearing the matter as a default, the assessment of costs against the delinquent party or other relief as the court may deem appropriate.

17. THE DISCOVERY DEADLINE set for this case is 14 days before the date set forth in this Order for the Prehearing Conference. This means discovery shall be COMPLETED (not started) by this date. Any discovery not disclosed and exchanged by this date shall not be admissible at trial. By this Order, the court imposes upon all parties a duty reasonably to supplement prior discovery responses made, under Minn.R.Civ.Proc. 26.05(c).

18,. The Clerk of this Court shall mail copies of this Order to counsel and any pro se parties, which shall be good and proper service for all purposes.

BY THE COURT: August 19, 2011

FINDINGS OF FACT AND FINDINGS OF FACT AND
ORDER RECOMMENDED. ORDER APPROVED.

Dated: 8/19/2011 dated: 8/19/2011

_____________________ ______________________
Susan Raleigh Laurie Miller, judge of District Court
Referee of District Court, Family Court Division

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(8) Petitioner’s Prehearing Statement (September 2011) See divorcebook.html, chapter 12.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

PETITIONER’S PREHEARING STATEMENT

and

Chester Arthur Mack, Junior
Respondent
_________________________________________________________________

PERSONAL INFORMATION:
HUSBAND WIFE
Full name Chester Arthur Rose Fen
Mack Mack

Present mailing address: 1702 Glenwood Ave. 2xxx Corn Court
Minneapolis, MN 55405 Herndon, VA 20171

Employer None None
Street Address
City, State, ZIP
Birthdate 02/21/1941 age: 70 04/15/1956 age: 55
Marriage date 01/28/2000
Separation date 02/18/2011
(Different Residences) Same Residences
Date(s) of Temporary File No. 27CR115037
Order(s), if any approx. dates 2/18/2011 to 3/18/2011

Minor children born to this marriage or who will be affected by this legal action.

N/A

Is the wife now pregnant? no
Is the issue of custody contested? no

EMPLOYMENT:
HUSBAND WIFE
a. Name of employer none-retired none-housewife
Employment benefits N/A N/A

Will your medical and dental insurance coverage be available for your spouse after the dissolution? no

Other income:

Social Security benefits $1,056 $280.00 USD (approx.)

Other income: $1,066 MSRS pension
$(dispute) rental income

Last year’s tax refunds: Federal #1,700 (approx.) federal none
(Respondent receives it)
State unknown state none
(Respondent receives it)

Child support/ spousal maintenance:

Does either party receive child support or spousal maintenance from a separate proceeding? no

Living Expenses:

Your estimated monthly expenses: $2,031.00 +

Real property:

HOMESTEAD OTHER*

Purchase price $20,500.00
Present fair market value $285,000
First mortgage balance $85,200
Net value $264,000
Monthly payment $884
Rental income, if any $ dispute

Homestead is a four-plex:

3-bedroom + 1 bath = rental income $800.00 monthly
Rented for approximately $800.00 per month
4-bedroom + 1 bath = potential rental income is $1100 monthly
Ms. Johnson who is Mr. Mack ’s ex-wife (no spousal
maintenance or equitable division of marital assets in their Decree)
became Mr. Mack ’s paramour during Ms. Rose Mack ’s
cancer treatments in 2010. Ms. Johnson has been staying in this
residence at no cost and Mr. Mack has written extensive
amounts of money to her and the 7-8 children Ms. Johnson has that
are not biologically related to Mr. Mack

2-bedroom + 1 bath - party’s residence
1-bedroom +1 bath - party’s residence

Other real estate; Provide the same information for other real property such as rental property, lake cabin, etc. - Please see Exhibit 5C.

Personal property: Fair market value

Motor vehicles 1995 Mercury
market value $500.00

Nonmarital claims

condominium in Beijing, China
Amount claimed: $200,000-220,000

Life insurance none

Pension plan and/or profit sharing plan

wife $5,000 (401k)

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(9) Respondent’s Prehearing Statement (September 26, 2011) See divorcebook.html, chapter 12.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

PETITIONER’S PREHEARING STATEMENT

and

Chester Arthur Mack, Junior
Respondent
_________________________________________________________________

 

PERSONAL INFORMATION:
HUSBAND WIFE
Full name Chester Arthur Rose Fen
Mack , Jr. Mack

Present mailing address: 1702 Glenwood Ave. 2xxx Corn Court
Minneapolis, MN 55405 Herndon, VA 20171

Employer None None
Street Address
City, State, ZIP
Birthdate 02/21/1941 04/15/1956
Marriage date 01/28/2000
Separation date 02/18/2011
Date(s) of Temporary
Order(s), if any

Minor children born to this marriage or who will be affected by this legal action.

none

Is the wife now pregnant? no
Is the issue of custody contested? no

EMPLOYMENT:
HUSBAND WIFE
a. Name of employer none none

Will your medical and dental insurance coverage be available for your spouse after the dissolution? no

Other income:

Social Security benefits $946
Interest paid per month $5 per month
Dividend paid per month $100/ month
Gross Rental Income $7,170/month - gross
State pension $959/month

f. employment benefits none

Child support/ spousal maintenance: NA

Living Expenses:
Rent 0
Mortgage payment $845
Homeowners insurance $90
Real estate taxes $60
Utilities $160
Heat $140
Food $100
Clothing $20
Laundry and dry cleaning $5
Medical and dental $100 (doesn’t include $100 monthly deduction
from Social Security)
Transportation ($0 car payment) $160
Car insurance $60
Recreation, entertainment & travel $20
Social and church obligations $20
Personal allowances $20
Home maintenance $10

Total monthly expenses $1,680

Real property:
See schedule.

Personal property
See schedule

7. Nonmarital claims
See schedule

Life insurance
none

Pension plan - husband, none

Debts

secured debts See Schedule
unsecured debts

Dated September 26, 2011 signed by respondent

SUPPLEMENTAL REPORTS FOR RESPONDENT’S PRETRIAL HEARING

REAL PROPERTY

Homestead: 1702 Glenwood Avenue, Minneapolis, MN 55405
Date purchased: 1991
Price: $20,500
In name of: Chester Mack
Mortgage or Contract for Deed balance: $85,200
Name of Mortgage or Contract for Deed holder: U.S. Bank
Second mortgage: none
Amount of real estate taxes in 2011: $1,512
Amount of insurance premium in 2010: $2,240
Tax assessor’s value: $86,300
My estimate of value: $120,000
Monthly payment: $884
Rental income (2010): loss of $4593

Apartment building: 1708 Glenwood Avenue, Minneapolis, MN 55405
Date purchased: 1992
Price: $72,000
In name of: Chester Mack
Mortgage or Contract for Deed balance: 0
Name of Mortgage or Contract for Deed holder: none
Second mortgage: none
Amount of real estate taxes in 2011: $4,955
Amount of insurance premium in 2010: $3,035
Tax assessor’s value: $237,500
My estimate of value: $230,000
Monthly payment: none
Rental income (2010): $7,729
Duplex: 1715 Glenwood Avenue, Minneapolis, MN 55405
Date purchased: 2003
Price: $29,100
In name of: Chester Mack
Mortgage or Contract for Deed balance: $175,000
Name of Mortgage or Contract for Deed holder: NationStar
Second mortgage: none
Amount of real estate taxes in 2011: $2,163
Amount of insurance premium in 2010: $1,591
Tax assessor’s value: $104,500
My estimate of value: $110,000
Monthly payment: $1,584
Rental income (2010): loss of $11,065

Vacant lot: 1719 Glenwood Avenue, Minneapolis, MN 55405
Date purchased: 2006
Price: $5,000
In name of: Chester Mack
Mortgage or Contract for Deed balance: none
Name of Mortgage or Contract for Deed holder: none
Second mortgage: none
Amount of real estate taxes in 2011: $153
Amount of insurance premium in 2010: none
Tax assessor’s value: $5,000
My estimate of value: $7,000
Monthly payment: none
Rental income (2010): none

Milford house: 100 Sawkill Avenue, Milford, PA 18337
Date purchased: December 1994
Price: $1
In name of: Chester A. Mack , Jr.
Mortgage or Contract for Deed balance: 0
Name of Mortgage or Contract for Deed holder: none
Second mortgage: none
Amount of real estate taxes in 2010: $5,765
Amount of insurance premium in 2010: none
Tax assessor’s value: $36,030
My estimate of value: $175,000
Monthly payment: none
Rental income (2010): loss of $5,468

Wisconsin property: Orienta township, Port Wing, Wisconsin
Date purchased: June 1986
Price: $10,500
In name of: Chester Mack
Mortgage or Contract for Deed balance: 0
Name of Mortgage or Contract for Deed holder: none
Second mortgage: none
Amount of real estate taxes in 2011: $412
Amount of insurance premium in 2010: none
Tax assessor’s value: $20,000
My estimate of value: $15,000
Monthly payment: none
Rental income (2010): none

PERSONAL PROPERTY

Household contents - clothing, furniture, kitchen items, etc. of undetermined value. Wunderlix celluloid estimated worth of $50,000 (husband premarital)

Stocks: Husband owns 1,000 shares of Xcel Energy stock @ $24 per share; 435 shares of Wells Fargo stock @25 per share; 80 shares of Arbitron stock @ $36 per share; 319 shares of Gannett stock @ $15 per share; 210 shares of DWS @ $8 per share.

Checking account: less than $100 in U.S. Bank checking account

Motor vehicles: Husband owns no automobiles.

Other motorized equipment: Husband has no such possessions.

Tools: Husband owns perhaps $1,000 worth of such equipment.

NONMARITAL CLAIMS:

Real estate: The house at 1702 Glenwood Avenue, the apartment building at 1708 Glenwood Avenue, the land in Wisconsin, and the house in Milford, Pennsylvania, were all acquired by husband prior to the marriage and are therefore nonmarital property. The duplex at 1715 Glenwood Avenue and vacant lot at 1719 Glenwood Avenue are marital property.

All stocks are nonmarital except for the shares of Xcel Energy purchased in 2003. The Wells Fargo stock was exchanged for Wachovia stock, owned prior to the marriage.

The celluloid of Wunderlix and most other artwork are nonmarital. Some Chinese art was acquired during the marriage.

Most of the debt, including all mortgage debt, is marital.

DEBTS

Secured debts

Mortgage on house at 1702 Glenwood Avenue
Creditor: U.S. Bank
Balance due: $81,871
When incurred: Dec. 2010
Party obligated: husband and wife
Reason for debt: Refinance variable-rate mortgage with fixed rate

Mortgage on duplex at 1715 Glenwood Avenue

Creditor: Nationstar Mortgage
Balance due: $174,372
When incurred: November 2007
Party obligated: husband and wife
Reason for debt: Refinance revolving account debt at lower interest rate

Unsecured debts

Creditor: U.S. Bank
Balance due: $38,505
When incurred: after Jan. 1993
Party obligated: husband
Reason for debt: household and business expenses

Creditor: U.S. Bank
Balance due: $22,504
When incurred: after August 1992
Party obligated: husband
Reason for debt: household and business expenses

Creditor: FNB Omaha
Balance due: $7,494
When incurred: after May 1976
Party obligated: husband
Reason for debt: Refinance other revolving account debt at lower interest rate

Creditor: Chase
Balance due: $4,339
When incurred: after April 2000
Party obligated: husband
Reason for debt: Refinance other revolving account debt at lower interest rate

Creditor: Advanta
Balance due: $3,300
When incurred: after 2006
Party obligated: husband
Reason for debt: Refinance other revolving account debt at lower interest rate

Creditor: HSBS (Menards)
Balance due: $2,763
When incurred: after July 1999
Party obligated: husband
Reason for debt: Purchases at Menards

Total secured debt: $256,243
Total unsecured debt: $78,905

Total debt: $335,148

Estimated debt at time of marriage: $18,000

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(10) Trial Order October 18, 2011 See divorcebook.html, chapter 15.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

TRIAL ORDER

and

Chester Arthur Mack, Junior
Respondent

_________________________________________________________________

The above-entitled matter came on for hearing before Referee Susan Raleigh on October 17, 2011.

Appearances:

Petitioner appeared with Counsel, Su-Mei W. Ming, Esq.

Respondent appeared with Counsel, James D.Smith, Esq.

Now, therefore, the Court makes the following:

ORDER FOR TRIAL

The trial is scheduled for a 2 (two) day trial beginning at 9:00 a.m. on May 7, 2012 and the following day of May 8, 2012, in courtroom 517, Hennepin County Family Justice Center, 110 South Fourth Street, Minneapolis, Minnesota. In the even that Petitioner is not able to attend those dates, the Court has reserved June 11 and June 12, 2012. Petitioner’s attorney shall notify the Court before January 1, 2012, as to whether or not her client will attend the May trial.

The following are the deadlines for trial in this matter:

PETITIONER’S EXPERT WITNESS DEADLINE is seven days before trial. By this date, the Petitioner shall deliver to opposing counsel and to the Court in Chambers the written report of any experts. Direct examination of all experts shall take place by this pre-marked written report. The expert must be made available at trial for cross-examination. any evidentiary objections shall be as stated below.

RESPONDENT’S EXPERT WITNESS DEADLINE is seven days before trial. By this date, the Respondent shall deliver to opposing counsel and to the Court in Chambers the written report of any experts. Direct examination of all experts shall take place by this pre-marked written report. The expert must be made available at trial for cross-examination. any evidentiary objections shall be as stated below.

THE EXHIBIT LIST DEADLINE is seven days before trial. By this date counsel shall exchange all trial exhibits and file with the Court a list of exhibits (plus any stipulations as to admissibility) that shall be introduced into evidence.

Petitioner’s exhibits shall be marked beginning with the number 1. Respondent’s exhibits shall be marked beginning with the number 101. At trial, each party shall make one copy of their exhibit notebooks available for the witnesses and one copy available for the Court’s clerk.

The parties shall attempt to stipulate as to admissibility of exhibits, and the stipulations shall be a part of the exhibit list filed with the Court. Any exhibits not included on the exhibit list filed with the Court shall not be admissible at trial. All objections to exhibits shall be addressed prior to trial as outlined below.

As a part of their trial exhibits, each party shall draft an inventory of the parties’ tangible personal property (household goods and furnishings, etc.) The inventory shall include a description of the item, when it was acquired, who acquired it, who has current possession, the cost of the item, current worth, and whether either party has a non-marital claim to the item. The inventory shall be filed with the Court along with the Exhibit List. If a party fails to file an inventory, that party will be precluded from providing direct testimony as to personal property.

The Deadline for Opposing Admissibility is three days before trial. Any party opposing admissibility of any exhibits shall deliver to the Court by this date a letter describing the reasons for opposing admissibility.

The Deadline for Explaining Admissibility is two days before trial. The proponent of the disputed exhibits shall deliver to the Court a letter by this date, explaining why the exhibit is admissible.

THE STIPULATIONS DEADLINE is two days before trial. The parties shall stipulate, in writing, to all uncontested facts and matters not in controversy. By the date set forth herein, the parties shall file all stipulations with the Court.

THE ASSETS/LIABILITIES DEADLINE is seven days before trial. By this date, the parties shall prepare a list of all assets and liabilities. Counsel shall use the values and balance as of the date of the Initial Case Management Conference scheduled before this Court. Exhibits supporting the stated values or balances shall be referenced in and attached to the schedule. After counsel examine the exhibits, if they cannot agree as to the correct values or balances for a particular asset or liability, then each attorney shall prepare a separate schedule of the disputed items with exhibits attached referencing values. The Court will receive the undisputed schedules and exhibits at the beginning of the trial without the necessity of any testimony or foundation unless there is a dispute regarding admissibility.

THE DEPOSITION DESIGNATION DEADLINE is seven days before trial. By this date, the parties shall file with the Court a designation of testimony to be offered by deposition, whether oral or video deposition. At trial, the original copy of the deposition shall be incorporated into the record as a Court Exhibit and preserved for purposes of appeal.

The Deadline for Specifying Objections to Deposition Testimony is three days before trial.

Counsel shall consult and attempt to resolve objections to any deposition testimony. Objections then remaining shall be listed, including page and line number, on a document filed with the Court by the date specified in this paragraph.

THE WITNESS LIST DEADLINE is seven days before trial. By this date, the parties shall file with the Court a list of witnesses to be called, including possible rebuttal witnesses. The list shall include a short substance of the testimony of each witness.

TRIAL FINDINGS OF FACT, CONCLUSIONS OF LAW. The parties shall exchange, and deliver to the Court, proposed Findings of Fact, Conclusions of Law, and Order for Judgment TWO WEEKS AFTER THE CONCLUSION OF THE TRIAL.

FAILURE TO COMPLY. Failure to comply with the provisions of this Order may result in the imposition of sanctions, including, but not limited to, refusal to allow introduction of exhibits and/or witness testimony, award of attorney’s fees, or imposition of costs.

NO CONTINUANCES: NOTIFY THE COURT. The Court will not grant a continuance to produce witnesses or evidence except in the most extraordinary circumstances. If counsel has questions regarding the availability of witnesses at trial, depositions shall be taken for use at trial. The parties shall immediately notify the Court, in writing, of any disposition of the case prior to trial.

The Clerk of this Court shall mail copies of this Order to counsel and any pro se parties, which shall be good and proper service for all purposes.

FINDINGS OF FACT AND FINDINGS OF FACT AND
ORDER RECOMMENDED. ORDER APPROVED.

Dated: 10/18/2011 dated: 10/18/2011

_____________________ ______________________
Susan Raleigh Judge of District Court
Referee of District Court Family Court Division

Family Court Division

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

(D) THE PARTIES’ EFFORTS TO SETTLE DIVORCE ISSUES

(11) Points of Agreement between the Parties (November 1, 2011) See divorcebook.html, chapter 16.

Agreement to Settle Divorce between Chester and Rose Mack

Chester will pay Rose $25,000 in cash.

Chester will pay Miss Lu $2,000.

Both parties will pay their own attorneys for present and past services rendered.

Chester and Rose will file a joint tax return. Chester will receive the refund, if any, and/or pay the tax owed, if any.

Rose will pay her own medical bills, both in the United States and in China.

Both parties will retain full ownership of their premarital property. Chester’s include the fourplex at 1702 Glenwood Avenue, the apartment at 1708 Glenwood Avenue, the house in Milford, the land in Wisconsin, and the Walt Disney prints. Rose’s include the “Big Apartment” in Beijing.

Chester will be responsible for marital debts. He will also receive the marital assets at 1715 Glenwood Avenue (a duplex) and 1719 Glenwood Avenue (a vacant lot).

Rose may store her belongings in a locked area of the basement at 1702 Glenwood Avenue for the remainder of her life, or until the building is sold, or until Rose voluntarily removes her belongings, or until an involuntary external act occurs necessitating the end of this arrangement.

There are no other agreements regarding occupancy of real estate.

If Rose dies and if Violet agrees, Rose’s ashes will be buried in the Milford cemetery.

signed

 

Rose Mack date Chester Mack date

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(12) Settlement Agreement, as Amended by the Parties in Discussion with two friends (December 20, 2011) See divorcebook.html, chapter 17.

______________________________________________________________________________
STATE OF MINNESOTA DISTRICT COURT
FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION

In Re the Marriage of: Case Type: Dissolution without Children

Rose Fen Mack,
Also known as Rose Rose Fen, and
Formerly known as Fen Ying Petitioner and

Chester Arthur Mack, Junior,
Also known as Chester Mack , and
Chester A. Mack
Respondent.

STIPULATED FINDINGS OF FACT, CONCLUSIONS OF LAW,
ORDER FOR JUDGMENT, AND JUDGMENT AND DECREE

File No. 27-FA-11-2008

The above matter was submitted to the Court for approval and filing without a final hearing,
pursuant to Minnesota Statutes § 518.13, Subd. 5, the parties having signed and acknowledged a
Stipulation. Petitioner was represented by Counsel, Respondent was temporarily without counsel for the negotiation process, however hired Respondent was represented by Mr. Frederick Smith, from in the beginning of the dissolution proceeding until the pre-trial conference and again to temporarily review the Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. Petitioner is represented by Su-Mei Kang Ming, and respondent at this time is not represented. represented himself as attorney pro se.

The parties have entered into a Stipulated Judgment and Decree, which is incorporated
herein. Respondent was duly served with the Summons and Petition of the Dissolution of the
Marriage on March 4, 2011. Respondent has agreed to with draw his Answer in its entirety as it
conflicts with this Stipulated Judgment and Decree. submitted an Answer.

Now, THEREFORE, based upon said Stipulation, and upon all of the files, records, and
proceedings herein, the Court makes the following Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree:

FINDINGS OF FACT
I.
The true and correct name of the petitioner is Rose Fen Mack. Prior to marriage
she was formerly known as Fen Ying and an alias of Rose Rose Fen. She is not known by any
other name. Currently, she is residing at 1702 Glenwood Avenue in Minneapolis, Minnesota,
Petitioner’s social security number is provided for in the Confidential Information Form.

II.
Petitioner is currently represented by Su-Mei W. Ming, Attorney at Law, through The
Kang Ming Law Office, located at 8xxx Wayzata Boulevard, Suite 320, in Golden Valley,
Minnesota, 55426.

III.
The true and correct name of respondent is Chester Arthur Mack, Junior.
He is also known as Chester Mack or Chester A. Mack . He is not known by any other
name. Respondent also resides at 1702 Glenwood Avenue in Minneapolis, Minnesota, 55405.
His social security is provided for in the Confidential Information Form.

IV.
Petitioner was born on April 5, 1956 and is fifty-five (55) years old. Respondent was
born on February 21, 1941 and is seventy (70) years old. Petitioner and respondent were issued a marriage certificate on January 28, 2000, in the city of Beijing, in the country of People’s Republic of China. They have been husband and wife since the day of their marriage.

VI.
Petitioner has resided in this state and Hennepin County for not less than 180 days (six
consecutive months) immediately preceding the commencement of this proceeding.

VII.
Neither party is a member of any branch of the United States military. Neither party is
entitled to any relief under the Service Members Civil Relief Act, as amended.

VIII.
The parties have no joint minor children. Rose Fen Mack has a child, who is of
majority age, Violet Yue Mack , and is not subject to this proceeding.

IX.
Petitioner is not now pregnant.

X.
The marriage has not previously been dissolved and no separate proceeding for
dissolution, legal separation, or custody is pending in any court in this state or elsewhere.

XI.
Petitioner has filed for a divorce in good faith.

XII.
There has been an irretrievable breakdown of the marriage relationship within the
meaning of Minn. Stat. §518.06.

XIII.
The parties were temporarily living apart since February 18, 2011, in connection to a
domestic-abuse case, Case Number 27CR115037. Mr. Mack returned to their home on
March 18, 2011, when the judge lifted the order at petitioner’s request. Petitioner declared the
incident occurred, but believed that the parties may work out their situation. Ms. Mack at
all times intended to live in the marital home since February 18, 2011, however, she has been in
different locations due to medical treatment and issues with Ms. Joyce Johnson, who resides in
the basement apartment of their marital home.

XIV.
Petitioner was employed at Target between 2002 and 2006 when she was injured at work. She is not now employed outside the home. Petitioner was diagnosed by a licensed
physician with breast cancer in 2009 and required chemotherapy, which was received in China.
Currently, she receives medical treatment for other physical ailments. Due to her physical
illness, she was and is unable to obtain gainful employment. However, Petitioner receives
approximately $280.00 USD, net income, per month of social security from People’s Republic of
China. Petitioner’s reasonable estimated living expenses for herself are $1,510.00, which is
subject to change with future needs of her health.

The respondent is currently retired and receives a monthly income in the sum of
$3,531.00, $2,131 which consists of $1,147.00 from social security and $984.00 from pension. , and from
approximately $1,400.00 in net rental income, from the properties listed in paragraph XXII

below. He also has a rental-property business whose profitability varies from year to year. Last year, it lost an average of $1,400 per month according to the parties’ federal income-tax return. Respondent’s reasonable monthly living expenses are $1,780.00.

XV.
During the time petitioner received medical treatment, 2010 when petitioner was living in China, respondent had an affair with his former wife who said she was pregnant. She later borrowed and stole financial assets from the Mack s. No police report has been filed against the Johnsons to date. Ms. Johnson and her family have lived in the same marital home as the Mack s, without paying rent, since November December 2010. Ms. Mack has insisted on evicting the Johnsons or collecting rent, but no action has been taken. Ms. Johnson has promised to repay the loans but has not yet done so. No eviction actions have been filed against the Johnsons to date.
Mr. Chester Mack has also given Ms. Johnson’s daughter a car worth $2,000.00.
Ms. Rose Mack does not approve of this transaction.

The Petitioner estimates the amount of marital assets whether borrowed, stolen, or lost from the marital property over the course of the Mack marriage to the Johnsons have been calculated from Mr. Mack ’s records to be approximately $135,000.00, which all occurred without Petitioner’s consent and was paid with marital income. Mr. Mack claims Ms. Johnson to be a debtor to him and believes, genuinely, Ms. Johnson will repay a portion of the debt.

XVI.
Petitioner is not covered by appropriate medical health insurance, but requires medical
assistance. Due to her husband’s financial circumstances, she, currently, does not qualify for
medical assistance. She is also not covered with vision and dental insurance. For the past five years, she has been receiving medical treatment in China. Respondent has health insurance through the government by Medicare, parts A and B.

XVII.
Petitioner is not an abled-bodied person who is capable of self-support without any
financial assistance from the other. Petitioner will require temporary spousal maintenance from
Respondent in the amount of four hundred dollars ($400.00) per month for one year. Due to
medical reasons, Petitioner reasonably believes her life expectancy is limited to around one year
or less. Respondent is capable of being self-supporting and is not in need of an award of spousal support from petitioner.

The parties acknowledge each has fully disclosed his or her financial circumstances to the
other as set in this Stipulated Agreement and Decree. By r Respondent is presently waiving any right to receive spousal maintenance in the future from petitioner. Consideration for this waiver of past, present, and future spousal maintenance is that respondent earns more income, posses more real property, has appropriate health insurance, and respondent is self-supporting, and the
property settlement and division of debts stated therein. The court finds this “Karon Wavier” of
spousal maintenance for respondent is just, fair, and equitable under the circumstances.

XVIII.
Because of Ms. Mack ’s health, she desires a quick and amicable settlement with
Mr. Mack . Mr. Mack also desires a quick and amicable settlement with Ms.
Mack due to his age.

XIX.
There following are debts occurred prior to marriage or solely by Mr. Mack , unless
specifically stated otherwise:

As of November 16, 2011, the Mack s had the following debt totaling $350,255:

Creditor Amount Owed Date of Disclosure
US Bank $8,000.00 11/16/2011
US Bank $39,207.00 11/16/2011
US Bank $80,416.00 11/16/2011
US Bank $22,871.00 11/16/2011
Nationstar $173,988.00 11/16/2011
Citibusiness $8,246.00 11/16/2011
Chase $3,952.00 11/16/2011
1st Bank Omaha $7,285.00 11/16/2011
Advanta $2,978.00 11/16/2011
Guardian Insurance $3,312.00 11/16/2011

The respondent’s total indebtedness at the time of marriage in January 2000 was approximately $18,000. The petitioner then had no debt.

In addition to borrowings, the respondent has sold approximately $90,000 of stock and real estate and used $113,000 from the proceeds of a life-insurance policy to meet the parties’ household, business, and other needs during the period of marriage. Petitioner has charged $3,000 to respondent’s credit card and received from him more than $5,000 in cash since she filed for divorce on March 5, 2011. After the proposed divorce settlement, the respondent will have approximately $10,000 of credit left to meet his future needs which includes proposed spousal maintenance for the petitioner.

XX.
Upon information and belief, the parties have incurred separate debts throughout the
marriage. Said debts are nominal in nature.

XXI.
Petitioner owns and possesses a 1995 Mercury Tracer worth approximately $800.00
subject to no encumbrances. Respondent does not own a vehicle.

Respondent is granted all right, title, interest and equity free and clear of any claim on the
part of Respondent, in and to the 1995 Mercury Tracer. Respondent is solely liable for any
monetary related costs thereon related to said vehicle and shall hold Petitioner harmless from
payment of the same. Petitioner shall, upon entry of Judgment or sooner if she desires, execute
all necessary documents to effect transfer of the title.

XXII.
1. The parties owns or possess, the following, real property:
a. A four-plex at 1702 Glenwood Avenue, Minneapolis, Minnesota. The only value
agreed upon is the resale value of $120,000.00. However, this number is derived without taking
into consideration that said property produces income.
This property is subject to a term of ten
(10) years’ mortgage obtained on December 10, 2010, where the principal line of credit received
was $86,300.00 and the remaining balance is $80,416 as of 11/11/2011. This line of credit was
used for household expenses, medical bills, loans to third parties, taxes, business insurance, and a
refinance of an earlier mortgage. Although this property was acquired prior to marriage, petitioner estimates that she has contributed $8,000.00 worth of labor into this property, which has increased the rental value and resale of the residence.
i. The legal description is: Lot 4 and 5, Block 16, Maben, White and Le
Bron’s Addition to Minneapolis, Minnesota.

b. A nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis,
Minnesota. The only agreed upon value is the resale value of $230,000.00. However, this value
does not take into consideration that this property would produce income.
There are no
encumbrances or liens on this property. This property was purchased prior to the marriage;
however, petitioner estimates that she has contributed labor to upkeep of the property worth $15,000.00, which has
improved the rental value of the property.
i. The legal description is: Block 16, Lots 6 and 7, Maben, White LeBron’s
Addition to Minneapolis.

The parties own the following marital property:
a. A duplex at 1715 Glenwood Avenue, Minneapolis, Minnesota. The only agreed
upon resale value is $110,000.00. However, this appraisal was made without taking into
consideration that this type of property produced income.
Said property is subject to a term of
thirty (30) years’ mortgage obtained on November 29, 2007 in the amount of $182,000.00, where
the debt is joint, the current remaining balance is $173,988.00 as of 11/16/2011.
i. The legal description is: the front or Northerly 145 feet of Lot 16,
Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street
or alley adjacent to said premises vacated to be vacated.

b. Real estate at 1719 Glenwood Avenue, Minneapolis, Minnesota, the resale value
is currently $7,000.00. i. The legal description is: the North 138 feet of the East 42 ½ feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin County, except the East 2.0 feet thereof.

c. A vacant lot by 1719 Glenwood Avenue, Minneapolis, Minnesota, the resale
value is currently $1,000.00. i. The legal description is: the East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin County, Minnesota.


3. Respondent owns, the following, non-marital real property:


a. A house and land at 100 Sawkill Avenue, Milford, Pennsylvania, where the resale
value is $175,000.00. This property generates income, but income was not taken into
consideration when evaluating the property. It is not subject to any encumbrances or liens.
i. The legal description is: tax map 113.13-0-70 for Pike County, Pennsylvania, book 995, page 001.


b. Twenty (20) acres and log cabin in Orienta Township, County of Bayfield, near
Port Wing Wisconsin. The value is $15,000.00 and said property is not subject to any
encumbrances or liens. However, around June 2010, Mr. Mack had owned 40 acres of
property in said County, but gave Ms. Johnson twenty (20) acres of said property for the sum of
$1.00, then, Ms. Johnson sold the property. Ms. Mack did not have any knowledge of this
transfer and did and would not approve of the transfer.


The legal description is: Government Lot 6, Section 29, Township 51 North, Range 6 West.
Petitioner owns, the following, non-marital property:


a. A condominium in Beijing, China at Hualong Residence Community, Tongzhou
District, Building 48, Apt 552. The resale value of said property is $220,000.00 USD and is not
subject to any encumbrances or liens.

XXIII.
Petitioner owns a diamond ring, her wedding ring, with a current value of $700.00.
Respondent owns three celluloid print of Wunderlix with the current
an estimated value of $50,000.00, each. These celluloid prints have never been appraised. Each party owns miscellaneous household goods and furniture with nominal values.

XXIV.
Petitioner currently has a 401k retirement worth $5,056.00 on the date of 11/16/2011
earned during the marriage. Respondent does not have a 401k retirement plan.

XXV.
The parties also own individual bank accounts with nominal value and no joint bank
accounts.

XXVI.
Neither party owns any life insurance policies.

XXVII.
Petitioner does not own any brokerage accounts. Respondent has brokerage accounts
with Scottrade and owns common stocks valued on November 16, 2011 as follows:


1. Company Value Date of Disclosure


Wells Fargo $10,960.00 11/16/2011
Gannart Gannett $9,920.00 11/16/2011
Arbitron $3,350.00 11/16/2011
European Equity $1,600.00 11/16/2011
US Bank $1,600.00 11/16/2011

XXVIII.
Each party is solely responsible for maintaining his or her health insurance coverage,
including, but not limited to, payment of any promises, if applicable deductible, co-payments and
uninsured costs after the filing of this Stipulated Findings of Fact, Conclusions of Law, and
Order for Judgment and Decree. The Respondent shall reimburse petitioner for a private medical
loan by paying the amount of $2,000.00 to a third party creditor, Da Zhe Lu, directly. Said party
does not reserve a legal right to collect on this debt from this Proposed Order.

XXIX.
The parties agree that the foregoing Findings of Fact and Conclusions of Law incorporate
the complete and full agreement of the parties. Both parties have read this Stipulated Judgment
and Decree and have signed it with full knowledge of its contents. Each party acknowledges
receipt of a copy of tis Stipulated Judgment and Decree, and each party that this agreement is
fair, just, and equitable.

CONCLUSIONS OF LAW

1. Dissolution: The bonds of matrimony existing between the petitioner and the
respondent are dissolved.
2. Personal Property: Petitioner is granted all right, title, interest and equity free
and clear of any claim on part of Respondent in and to the household goods and furnishings,
furniture, and all other tangible household and personal property presently in her possession in
China, with no contribution to Respondent.

Respondent is granted all is granted all right, title, interest and equity free and clear of
any claim on part of Respondent in and to the household goods and furnishings, furniture, and all
other tangible household and personal property presently in his possession in the residences of
the United States, with no contribution to petitioner.

3. Real Property:
Petitioner is granted the following property:
a. A condominium in Beijing, China at Hualong Residence Community,
Tongzhou District, Building 48, Apt 552.

In regards to any mortgages, liens, encumbrances that the petitioner is ordered, based on
the parties’ agreement, petitioner will be solely liable for normal maintenance and all monthly
payments of principal, interest, taxes and insurance on said homestead, and petitioner shall
indemnify and hold the respondent harmless from any liability or obligation to make any
payment whatsoever regarding properties in petitioner’s paragraph 3a (above).

Respondent is granted the following property:

a. A four-plex at 1702 Glenwood Avenue, Minneapolis, Minnesota with the legal
description of: Lot 4 and 5, Block 16, Maben, White and Le Bron’s Addition to Minneapolis,
Minnesota;

b. A duplex at 1715 Glenwood Avenue, Minneapolis, Minnesota with the legal
description of: the front or Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin
County, MN;

c. A vacant lot at 1719 Glenwood Avenue, Minneapolis, Minnesota, with the legal
description of: the North 138 feet of the East 42 ½ feet of that part of Lot 15 lying North of 3rd
Avenue North, Auditor’s Subdivision No. 26, Hennepin County, except the East 2.0 feet thereof;

d. A vacant lot at 1719 Glenwood Avenue, Minneapolis, Minnesota, with the legal
description of: the East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15
lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin County, Minnesota;

e. An apartment building at 1708 Glenwood Avenue, Minneapolis, Minnesota with the legal
description of: Block 16, Lots 6 and 7, Maben, White LeBron’s Addition to Minneapolis;

f. A house at 100 Sawkill Avenue, Milford, Pennsylvania, with the legal description of:
(double check this legal description) tax map 113.13-0-70 for Pike County, Pennsylvania, book 995, page 001.

g. 20 acres and log cabin in Orienta Township, County of Bayfield, near Port
Wing Wisconsin, with the legal description of: Government Lot 6, Section 29, Township 51
North, Range 6 West.

In regards to any mortgages, liens, encumbrances that the respondent is ordered, based on
the parties’ agreement, respondent will be solely liable for normal maintenance and all monthly
payments of principal, interest, taxes and insurance on said homestead, and respondent shall
indemnify and hold the petitioner harmless from any liability or obligation to make any payment
whatsoever regarding respondent’s paragraph 3a’s to 3f g’s properties.

4. That immediately upon entry of the Judgment and Decree herein, the petitioner
shall execute a Summary Real Estate Disposition Judgment conveying respondent interest in the
homestead to the marital properties subject to the lien described above. However, if the
petitioner does not execute proper instruments, then said Judgment and Decree shall operate as a
conveyance to the respondent in accordance herewith.

5. Notice of Tax Effect on Sale of Principal Residence: The parties are notified
that income tax laws regarding the capital gains tax may apply to the sale of a principal
residence. This includes, but is not limited to, the exclusion available on the sale of a principal

residence for those over a certain age under Section 121 of the Internal Revenue Code of 1986,
or other applicable law. Unless otherwise specifically stated, the party who receives the
principal residence is entitled to have the first choice in exercising this offset. The parties may
wish to consult with an attorney or accountant concerning the applicable laws.

6. Bank Accounts/Retirement Accounts/Pension Plans/Investments: That
petitioner is awarded all right, title, interest and equity, free and clear of any claim on the part of
respondent, in and to the cash, savings or checking accounts, stock, bonds, dividends, profit
sharing, pension and retirement interests in the petitioner's name or under petitioner’s control.
That respondent is awarded all right, title, interest and equity, free and clear of any claim
on the part of the petitioner in and to the cash, savings or checking accounts, stocks, bonds,
dividends, profit sharing, pension and retirement interests in the respondent's name or under
respondent’s control.

That respondent gives petitioner (a) one-time settlement amount of $25,000.00 in a
cashier’s personal check payable to Rose Mack given to her on the date of the hearing when the signed agreement is presented to the court and (b) a cashier’s personal check for $2,000.00 payable to Da Zhe Lu when the divorce becomes final. Petitioner shall not cash this her check the filing of the marriage dissolution before the divorce becomes final.

7. Spousal Maintenance: Spousal maintenance is awarded to petitioner based on
the agreement of the parties. That immediately after the parties sign the settlement agreement,
the respondent is ordered to pay to the petitioner as and for maintenance the sum of Four
Hundred Dollars ($400.00) per month, due at the first of every month for one year. That immediately upon the petitioner's remarriage, or the petitioner's death, whichever first occurs, the respondent shall pay no further or additional temporary or permanent maintenance to the petitioner, and the petitioner hereby waives any right to have the respondent pay petitioner any further or additional temporary or permanent maintenance.

Respondent is forever barred from seeking any modification whatsoever to the amount or
the duration of maintenance provided herein, and the Court is divested of further jurisdiction
over the modification of maintenance.

8. Automobile: Respondent is awarded, per agreement, all right, title, interest and
equity, free and clear of any claim on the part of the petitioner, in and to the 1995 Mercury
Tracer automobile of the parties and shall assume any encumbrances thereon. The respondent
shall, upon entry of Judgment or sooner if petitioner so desires, execute all necessary documents
to effect transfer of the title.

9. Income Tax Returns: That the petitioner and the respondent are ordered to file
joint Federal and State Income Tax Returns for calendar year 2011. The respondent is to assume
any liability and shall receive any refund resulting from the filing of said Returns.

10. Joint Debts: That the respondent is to assume and pay the above-stated debts in
paragraph XIX and respondent is to indemnify and hold the petitioner harmless from any
obligation to make payment of the same on the date the dissolution is ordered by the Court.

11. Separate Debts: That the petitioner is to assume and pay the debts which
petitioner has incurred, except medical debts incurred during the marriage and any periods of
separation for which the Respondent will pay $400, which will be split fifty (50) percent, which are not otherwise specified herein, and to indemnify and hold the respondent harmless from any obligation to make payment of the same.

That the respondent is to assume and pay the debts which respondent has incurred, which
are not otherwise specified herein, and respondent is to indemnify and hold the petitioner
harmless from any obligation to make payment of the same.


12. Undisclosed Debts: That in the event that there is a debt obligation that has not
been heretofore disclosed, that obligation is the sole responsibility of the party that incurred it,
with the exception for medical debts incurred during the marriage and any periods of separation.
The petitioner’s medical debts will be paid by her except for $400 which the Respondent will pay shared equally. Petitioner shall provide Respondent of all receipts of
medical debts and give her half the costs $400 within thirty (30) days of receipt of any Bills.
Respondent will be responsible for all medical debts incurred by the parties prior to the filing of
this Order.

13. Attorneys' Fees and Costs: That the petitioner is ordered to be responsible for
her attorney’s fees and costs incurred incident to this proceeding.
That the respondent is ordered to be responsible for his attorney’s fees and costs incurred
incident to this proceeding.

14. Execution and Exchange of Documents: That to implement the terms and
provisions contained herein, each of the parties is ordered to make, execute and deliver to the
other party instruments of conveyance, assignment, and other documents as may be required.
15. Service: Service by mail of the copy of the Judgment and Decree upon either
party or that party's attorney is to be deemed to constitute actual notice to that party of the terms
contained in the Judgment and Decree.

16. Full Agreement: The parties agree that the foregoing Findings of Fact and
Conclusions of Law constitute the complete and full agreement for marital termination.

17. APPENDIX A: APPENDIX A IS INCORPORATED AND MADE A PART OF
THIS JUDGMENT AND DECREE. Appendix A contains provisions regarding Payments to
Public Agency, Minnesota Statutes § 518A.50, subdivision 1; Depriving Another of Custodial or
Parental Rights--A Felony, Minnesota Statutes § 609.26; Nonsupport of a Spouse or Child –
Criminal Penalties — Minnesota Statutes § 609.375; Rules of Support, Maintenance, Parenting
time; Modifying Child Support; Parental Rights from Minnesota Statutes § 518.17,subdivision 3;
Wage and Income Deduction of Support and Maintenance, Minnesota Statutes § 518A.53;
Change of Address or Residence; Cost of Living Increase of Support and Maintenance pursuant
to Minnesota Statutes § 518A.75; Judgments for Unpaid Support pursuant to Minnesota Statutes
§ 548.09l; Judgments for Unpaid Maintenance pursuant to Minnesota Statutes § 548.091;
Attorneys Fees and Collection Costs for Enforcement of Child Support, Minnesota Statutes §
518A.735; Parenting Time Expeditor Process, Minnesota Statutes § 518.1751; Parenting Time
Remedies and Penalties, Minnesota Statutes § 518.175, subdivision 6.

ACKNOWLEDGMENT AND STIPULATION
The undersigned parties affirm to the Court that the foregoing Conclusions of Law
incorporate the parties’ complete and full agreement for marital termination to resolve all issues
in this dissolution case. Furthermore, the parties assert that the facts stated in the Finding of Fact
are true and accurate that each party has fully disclosed the nature and extent of his or her
property and income, and that this agreement is based upon that full and fair disclosure. The
parties ask the court to enter strict conformity with the foregoing and, so long as the Court does
so, the parties agree that this matter may proceed by default. If the Court intends to deviate at all
from the terms of the foregoing, each party shall be notified and given the opportunity to present
all arguments concerning all issues in the dissolution case.

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )


Dated: ____________________________ Dated: ______________________

____________________________
Rose Mack Chester Mack


Subscribed and sworn to before me this Subscribed and sworn to before me
this
_____ day of December, 2012 ______ day of December, 2012


______________________________________ ______________________________________
Notary Public Notary Public


Dated:
Su Mei Kang Ming
Attorney at Law
The Kang Ming Law Office
8xxx Wayzata Blvd, Suite 320
Golden Valley, MN 55426
Phone: (612) 886-6951
wsl@wongMinglaw.com
MN Attorney ID #0389649



APPROVED AS TO FORM:

By: ________________________________
Su-Mei K. Ming
Attorney for Petitioner

WAIVER OF COUNSEL

I, Chester Mack , Jr. acknowledge that I have been told that I have a right to be
represented by counsel of my choice and that I know that I am not represented by any attorney or
law firm, and that I have been provided with full disclosure of all facts, matters and things, and
that I state that I am of sound mind and that I have freely and voluntarily chosen to represent
myself and hereby waive my right to be represented by counsel for the purpose of the foregoing
stipulated findings of fact, conclusions of law, and proposed order. Petitioner can proceed by
default without any further notice to me.


Date:
Chester Mack
[Address] 1702 Glenwood Avenue
[City, State, Zip] Minneapolis, MN 55405
Respondent

NOTWITHSTANDING GEN. R. PRAC. 125
LET JUDGMENT BE ENTERED IMMEDIATELY

ORDER FOR JUDGMENT
LET JUDGMENT BE ENTERED ACCORDINGLY
The foregoing facts were found by me after due hearing and the foregoing order thereon
is recommended.

Dated:
Referee Susan Raleigh

Findings of Fact, Conclusions of Law, and Order for Judgment approved as of date
heard.

Judge of District Court
Family Court Division

I certify that the above Conclusions of Law constitute the Judgment and Decree of
the Court.
BY THE COURT:
DISTRICT COURT ADMINISTRATOR

By:

Deputy

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

 

(E) PETITIONER’S MOTION FOR TEMPORARY RELIEF

(13) Petitioner’s Application for Temporary Relief Without Children (January 4, 2-12) See divorcebook.html, chapter 18.

 

DISTRICT COURT
FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

APPLICATION FOR TEMPORARY RELIEF

and

Chester Arthur Mack, Junior
Respondent

STATE OF MINNESOTA ) SS
COUNTY OF HENNEPIN

My name is Rose Mackand I state under oath that I am the Petitioner in this case, and in this Application for Temporary Relief, I will be referred to as the Wife. I understand that as I fill out this Application for Temporary Relief, I am under oath and must tell the truth.

The parties were married on 01/28/2000. The Wife’s age is 55 years and the Husband’s age is 70 years.

The parties have been separated 11 months during which time: Husband has paid approx. $700 per month to the Wife.

a. The family home is: owned by the parties. The family home is now occupied by: Both Parties. Other persons live in the home: Joyce Johnson (mistress) and other paying renters, this place is a four-plex. The parties own the four-plex.

The wife has no nonjoint children from a previous marriage or relationship. The wife: pays / receives $n/a per month for the support of the nonjoint children.

The husband has no nonjoint children from a previous marriage or relationship. The husband: pays / receives $n/a per month for the support of the nonjoint children.

The parties have the following assets: Petitioner (wife) reports owning a 1995 Mercury worth $800.00. She has $100 in cash and savings. She has no knowledge of her husband’s possessions.

Secured debts (not including those listed above and not including homestead; attach additional sheets, if necessary:

Name of Creditor: ICMC Data Sheet

Necessary Monthly Expense (for you and the nonjoint children) if the nonjoint children lives with you:

Under monthly expense in the column “Wife/Husband Expenses”, she lists the following: $750 for rent, $30 for utilities, $30 for heat, $300 for food, $70 for clothing, $20 for laundry and dry cleaning, $2000-500 for medical and dental, $100 for transportation, $60 for car insurance, $150 for recreation/travel, $21 for newspapers/magazines, $20 for social and church obligations, and $20 for personal allowances/ incidentals. The total monthly expenses are $2,100.

Provide the following data for each employer. Attch paycheck stub(s) for the last month, or if available, the last three months(s):

Name of Employer: Husband, self/retired; Wife, none.
Type of employment: Husband, landlord; Wife, none.
Nothing is filled out under income.

a. $5,000 has been paid on wife’s attorney’s fees and costs.
b. $2,500 (pro se now) has been paid on husband’s attorney’s fees and costs.
$999.00 is reasonable for the Wife’s attorney’s fees and costs.

Additional Material Facts: I think my husband hides property and gives a lot of money to his mistress Joyce Johnson. He refuses to evict her and she and her family has lived in my husband’s and I’s rental property for years.

Based on the above information, I ask the Court for an Order granting such relief prior to Trial as may be just and lawful.

This notarized application was signed and dated 1/4/2012.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

PETITIONER’S NOTICE OF MOTION AND MOTION

and

Chester Arthur Mack, Junior
Respondent Presiding judicial officer: Susan Raleigh

_________________________________________________________________

NOTICE OF MOTION

TO: Chester Arthur Mack, JR. at 1702 Glenwood Avenue, apt. #3, Minneapolis, MN 55405

PLEASE TAKE NOTICE, that the undersigned will bring the above motion on for hearing before the Honorable Susan Raleigh, Referee of Family Court, at a hearing to be held on the 5th floor, Room C-517, of the Family Justice Center, 110 South 4th Street, Minneapolis, on the 24th day of January, 2012 at 3 o’clock p.m., or as soon thereafter as counsel can be heard.

MOTION

The petitioner, Rose Mack , moves the Court for an order as follows:

Awarding temporary spousal maintenance in the amount of $2,100.00 per month to petitioner and denying spousal maintenance to respondent;
Ordering respondent to be responsible for any medical debts incurred prior to the parties’ separation and during the separation, and when required to pay, in advance, any medical expenses, respondent will pay petitioner this advanced cost;
Awarding to the petitioner the temporary and exclusive occupancy of one of the apartments of the four-plex, located at 1702 Glenwood Avenue, Minneapolis, MN, 55405 together with the temporary use and possession of the household goods and furnishings herein.
Awarding to the petitioner the temporary and exclusive use and possession of the 1995 Mercury Tracer automobile of the parties and requiring petitioner to assume all responsibility therefore, excluding maintenance of insurance thereon.
Restraining respondent from harassing, vilifying, mistreating, molesting, disturbing the peace, or restraining the liberty of petitioner;
Restraining respondent from encouraging or participating in or with Ms. Joyce Johnson (paramour) and her family from harassing, vilifying, mistreating, molesting, disturbing the peace, or restraining the liberty of petitioner;
restraining respondent to permit or authorize in any means, Mrs. Joyce Johnson from residing and entering into the marital home of the parties, including use of common hallways and entrances.
Retraining respondent from failing to collect rent and to continually permit nonpaying tenants to occupy or have any type of tenancy at the parties’ income producing real properties subject to the proceedings;
Restraining respondent from transferring, encumbering, concealing or disposing of property except in the usual course of business or for the necessities of life, except as to any future earned income or from seeking credit in the name of petitioner, except as the parties with their attorneys may agree in writing.
Requiring respondent to account to the court and petitioner for all such transfers, encumbrances, dispositions, and expenditures made after the order is served or communicated to the party restrained in open court;
Restraining respondent from changing any insurance policies as to the coverage, beneficiary, or amount, and directing that they maintain in effect any health, hospitalization, automobile and life insurance available to them on the date of the temporary hearing there, for the benefit of the parties;
Requiring respondent to facilitate a just and speedy resolution of the disposition of the proceeding;
Requiring respondent to pay to petitioner the sum of $999.00 as and for temporary attorney’s fees and costs incident to this proceeding; and
Grant each other and further relief as the Court deems just and equitable.

Petitioner bases this motion on the files in this matter, arguments of counsel, and Application for Temporary relief, and the files, records and proceedings herein, including, the following documents to be filed and served prior to the hearing: Affidavit of Rose Mack and Exhibits.

ALL RESPONSIVE PLEADINGS SHALL BE SERVED AND MAILED TO OR FILED WITH THE COURT ADMINISTRATOR NO LATER THAN FIVE (5) DAYS PRIOR TO THE SCHEDULED HEARING. THE COURT MAY, IN ITS DISCRETION, DISREGARD ANY RESPONSIVE PLEADINGS ERVED OR FILED WITH THE COURT ADMINISTRATOR LESS THAN FIVE (5) DAYS PRIOR TO SUCH HEARING IN RULING ON THE MOTION OR MATTER IN QUESTION.

All new issues must be served and mailed with the court administrator no later than ten (10) days before the hearing or mailed to the other party at least thirteen days (13) before the hearing. Your papers raising new issues must be filed with the court administrator at least ten (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.

Statement dated 1/4/2012, and signed by the attorney for the Petitioner

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner MOTION EXHIBITS

and

Chester Arthur Mack, Junior
Respondent Presiding judicial officer: Susan Raleigh

_________________________________________________________________

The following are the true and correct copies of the following documents:

Exhibit 1: Website, Respondent running for Lieutenant Governor of Minnesota, 2010
Exhibit 2: Chester Mack resume
Exhibit 3: Minn. Stat. 518.522 Maintenance, Subd. 1 and 2
Exhibit 4: Letter from Chester Mack
Exhibit 5: Brokerage agreement from real estate agent with attachment
Exhibit 6: Documents for real estate agent prepared by Chester Mack
Exhibit 7: Tax Returns 2008
Exhibit 8: 2010 Chester Mack ’s Checkbook Ledger (hearts indicate Joyce Johnson)
Exhibit 9: Summary of Chester Mack ’s Checkbook Ledger
Exhibit 10: Example of Visa Chester Account Ending in 2637
Exhibit 11: Example US Bank Account Ending in 5106

Dated January 4, 2011 and signed by attorney for petitioner

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner

AFFIDAVIT OF ROSE MCGUAGHEY
IN SUPPORT OF PETITIONER’S MOTION


and

Chester Arthur Mack, Junior
Respondent Presiding judicial officer: Susan Raleigh

_________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

I, Rose Mack , hereby state and affirm under oath that:

I am the Petitioner in this matter and I make this Affidavit in support of my Motion for Temporary Relief of my Dissolution of Marriage. I had an interpreter assist me with this affidavit.

BACKGROUND

Our Marriage and the Husband’s Extramarital Affair: [Motion ¶ 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 14] In January 28, 2012, Chester Arthur Mack, Chester, and I, will be married for twelve (12) years. Our marriage reflects traditional spousal roles. The marital bank accounts are only in Chester’s name. The car is titled in my name, but we argue over it. Chester is good with money and ran for Lieutenant Governor of Minnesota in 2010. [Exh. 1, 2) However, Chester had an extramarital affair with second ex-wife, Joyce Johnson, even while I was receiving cancer treatment, involving chemotherapy. Chester gives Joyce a monthly income and permits her to live, for free, in an apartment of our marital home. I have a difficult time with Joyce living in the same place as I do. I hear Chester and Joyce talk to each other and they say things like they should find ways to kick me out of the country, even though I am a U.S. citizen. Chester also was arrest for bruising my lip. A temporary Order for Protection resulted (Case No. 27CR115037) and at my request, it was lifted, but I filed for divorce.

Wife’s Medical Sacrifices Saved Money, Husband Gives Money to His Mistress: [Motion ¶ 2, 8, 9, 12] Because Chester refused to purchase health insurance for me here, I resorted to seeking medical care in China, because it was more affordable. Besides the difficulty of traveling, a downside to having medical treatment in China is that the medical expenses have to (be) paid prior to receiving treatment. Chester argues with me about paying for medical expenses, even though he frequently gives Joyce money. [Exh. 8, 9)

REQUEST FOR TEMPORARY SPOUSAL MAINTENANCE:

GROUNDS FOR MAINTENANCE

(The following format follows Minn. Stat. 518.522 Maintenance, Subd. 1 and 2 - Exh. 3.)

[Motion ¶ 1] Insufficient Marital Property and Husband’s Insufficient Contributions

[Motion ¶ 1] Lacks Sufficient Marital Property: I do not believe that the property acquired during our marriage, upon selling it, will be enough to pay my living expenses without any spousal maintenance. However, I’ve contributed to maintain, upkeep, and manage some of Chester’s property, which he acquired before we were married. When appraising real estate, I will refer primarily to Chester’s estimates.

[Motion ¶ 1] The following is a list of property that was acquired during the marriage:

1. Duplex: 1715 Glenwood Avenue, Minneapolis, MN 55405
Purchase price: $29,100.00
Estimated value: $110,000.00
Lien $173,988.00 as of 11/16/2011 - incurred in 2007

2. Vacant Lot: 1719 Glenwood Avenue, Minneapolis, MN 55405
(two parcels)
Purchase Price: $5,000.00
Estimated value: $7,000.00
Lien: none
Notable Remarks: old sewer line runs through the lot [Exh. 4]

Marital real property value = -$56,998.00

[Motion ¶ 8, 9, 10] Chester acquired the following properties prior to our marriage:

Four-plex: 1702 Glenwood Avenue, Minneapolis, MN 55405
Estimated value: $120,000.00
Purchase Price: $20,500.00
Lien: $80,416.00 as of 11/11/2011 - lien acquired Dec. 2010
Rose’s efforts: $11,000.00 labor
(Labor: $5.50/hour for 200 hours/year for 10 years)

Nine-unit apartment building: 1708 Glenwood Avenue, Minneapolis, MN 55406
Estimated value: $230,000.00
Purchase price: $72,000.00
Lien: none
Rose’s efforts: $1,100.00 labor; $1,000.00 managerial skills
(Labor: $5.50/hour for 20 hours per year for 10 years;
Managerial skills: $20/hour for 50 hours per year for 1 year)

Rose’s contributions = $13,100.00 which increased properties values

1. [Motion ¶ 12, 13] Since Chester is without an attorney and has stated many things, I’ll explain the condominium, which I acquired in the 1980s and sold in late 2010. When Violet Mack, my daughter, needed money for the down payment on her first home, I sold my condo in China and gave a majority of the proceeds to her. Its value passively increased due to inflation and “market forces”. However, Chester may claim he gave me cash, one time, to fix up the property, but this is not true, because his money was used to cover his dental expenses and sightseeing in China. Thus, Chester did not give me anything for the apartment. Lastly, Chester did not have an issue with me giving Violet money, until now.

2. [Motion ¶ 1, 2, 3, 4] Marital Property Apportioned to Spouse: Besides for household goods and furniture that I share with Chester,there is not any tangible property that has been given to me. However, Chester has given me an average of $700.00 per month in the United States (cash and I use our joint credit card) [Exh. 11] and a total of $3,000.00 towards both my living and medical expenses when I had to go to China for medical care in spring 2011, Nonetheless, it was not enough and I still have $3,100.00 outstanding medical expense debt in China. Then, right after Christmas, he refused to give me more money and Chester, Joyce, and I argued at our home. I left and stayed with my daughter out of state.

3. [Motion ¶ 1] Modest Marital Standard of Living and Wife’s Inadequate Self-Support

4. [Motion ¶ 1] Marital standard of living: Chester and I live in one of the apartments of our four-plex, while the other three apartments are rented out. Without rent and other expenses, I spend about $400 to $500 per month. [Exh. 10] We share a rusted 1995 Mercury Tracer worth $800.00 and sometimes,I take public transportation. Chester keeps busy by engaging in politial campaigns and debates and spent a little bit of money campaigning, but I know Chester would not become a politician with lot of debt, especially running for Lieutenant Governor of Minnesota in 2011.

5. [Motion ¶ 1, 2, 11] Wife’s Inadequate Self-Support: For most of my marriage to Chester, I was a housewife, who worked part time for a few years. The in 2009, I was diagnosed with breast cancer and I traveled abroad seeking medical treatment. Due to numerous disruptions for international travel for medical care, it has been difficult for me to find employment. Further, I was denied government assisted medical coverage because of Chester’s assets. I removed Chester as my power of attorney, but I am worried that he did something. However, I am working with a nonprofit organization, Cervical Cancer Screening - Sage program to continue to help me obtain medical coverage. I am applying for social security disability, but this process can take almost a year; and there is a possibility that i will not qualify as disabled under its definition.

6. [Motion ¶ 1] Financial Resources Allocated to Seeker of Maintenance; Marital Assets; Ability to Gain Employment:

7. [Motion ¶ 1] Training, Education; Age; Skills: I am fifty-five (year) old college graduate from China with what I believe to be a a fifth grade level of English Literacy. I was taking community education courses, night classes, English as a Second Language (ESL), until spring 2008 and stopped because I was diagnosed with cancer. The language barrier continues to be difficult. Nonetheless, I search for Chinese job postings and network with some of my friends in China to see if there is anything available to me. However, with frequent need to travel internationally for medical treatment, it is difficult to find employment.

8. [Motion ¶ 1] Marital Standard of Living: please see 5a above.

9. [Motion ¶ 1, 2] Wife’s Absence from Employment: I have not worked as a hotel manager for over eleven years. I worked at Target for a few years, but I stopped working because I hurt my leg. I wanted to get medical care here, but Chester did not want to pay for it, therefore, I went back to China and received medical care for my injury and had to quit my job.

10. [Motion ¶ 1] Wife Loss of Earnings and Employment Opportunities Foregone: I gave up my career and moved here to be with Chester. The following is a summary of my career and earnings, converted to approximate USD values:

1997-2001: Regional Hotel Manager (China), $10,000 annual income (80,000 yuan)
2001-2003: Housewife, no income
2003-2006: Hourly Employee at Target, average $11,000 annual income
2006-2010: Housewife, no income
2010-current: Housewife, $annual income (China’s social security)

When I first received social security from china, it was about $100.00 per month, and gradually it increased with the currency exchange rate being closer in values to each other than before. If I were to stay in China and work as I had been, I would be making about a little less than $161,200 USD (1,000,000 yuan) every y ear. Hotel groups that are larger pay $32,500.00 (2,000,000) annually, if I were to progress at a normal level rate as I was before.

[Motion ¶ 2] Physical and Emotional Health of Spouse Seeking Maintenance: I am in moderate to poor physical health from cancer treatments and various surgeries. I will require money to seek medical treatment in China for my checkup. The entire balance required, in advance, is approximately $5,000.00, which includes surgery. I believe my mental health is fine.

[Motion ¶ 1] Ability of Spouse to Pay Spousal Maintenance: Chester is retired, but graduated from Princeton University, then, later became a certified public accountant. Prior to our marriage, Chester has worked full time as a cost accountant, accountant in the budget section, and as a controller, who earned $110,000.00 annually. He also ruins for government positions, including Mayor of Minneapolis, Lieutenant Governor of Minnesota, etc. However, since I’ve known Chester, he has owned and managed rental properties and published articles with his own company, Thistle Rose Publications.

Income: Chester receives at least approximately $40,000.00, net, annually.

Sources of Annual Income (Net):

$13.784.00 from Social Security
$11,808.00 from a pension
$1,260.00 from dividends and interest
$24,000.00 from the rental properties
a) 9 Unit Apartment Building: $17,706.00 (Exh. 5, 6)
b) Four-Plex: $2,000.00
c) Duplex: $00.
Single Family Home: $2,000.00

I don’t believe that Chester’s expenses are all legitimate. The 2008 tax return is lower than what he told he receives in rent from his relator. [Exh. 5, 6] I think my figures are more accurate.

Loss of Income: Chester loses approximately $15,000.00 annually.

[Motion ¶ 9, 10] Sources of Lost Income:

$13,800.00 from nonpaying tenant, Joyce and family, the apartment rents for at least $1150.00 per month and she has lives without payment of rent since December 2010. [Exh. 6] I believe the rent has gone up since 2008, but this is a sample of a lease from 2008 where he charged $1150 per month for the apartment that Joyce stays in. [Id.]

Other tenants who are late or we can’t rent out the rooms.

Liabilities and Debts: Chester claims that we have over $350,000.00 of total debt. I believe Chester and Joyce had been having an affair since June 2005, when Joyce moved into Chester’s nine-unit rental property for a few months, then left.

Secured Debt = $254,000.00

$84,000.00 Chester took out a line of credit while divorce conversations were taking place in December 10, 2010.
$174,000.00, we took this mortgage out in 2007.

Unsecured Debt= $84,000.00

Chester told me that he had no debt before se were married, but recently he told me it was $18,000.00. I’m not sure what it was for.

Rose did not have any debt prior to marriage.

[Motion ¶ 9, 10] In my almost twelve years in living with Chester, he has not complained about being in debt. Chester used to complain about his ex-wife taking money from him without his knowledge and putting him into a little debt, which he would then get them out of. In 2005, Chester complained a lot when he gave $30,000.00 to Joyce. Chester questioned whether she did it and complained a lot, but that was about it. Chester and I traveled to China every year, paying for all travel and he would travel conferences all over the world as part of his Chester is very prideful and even ran for office in 2010 for Lieutenant Governor because he thinks he can do a better job at balancing the budget and getting our state out of debt. The second time I heard him complaining about debt was after he came home from jail in March 2011. I was surprised. Chester is the type that keeps track of money and would complain in regards to money. thus, I believe Chester took out more debt to make himself look poor for the divorce. Chester often fights the City of Minneapolis to reduce his property taxes and refuses to fix what various housing authorities require. If he does this long enough, they will condemn his property, but I live nearby and there was not any major construction that happened. I saw repairs that were small in nature such as changing the shade on the lights.

[Motion ¶ 9, 10] Disposition of Income and Property: It was made very clear in the petition that Chester was not supposed to transfer away any property during and pending the divorce. I have reminded Chester of this as well. He tells me he give Joyce money after he found out about the pregnancy mid 2010, but this is not true. [Exh. 8, 9] Chester claims he loans Joyce and her family money, but the only person I’ve ever known to pay anything back is Joyce’s brother in law, Joe Nelson, and that was not very much. I believe lending to someone who you know does not pay you back is not for a legitimate purpose. I think Chester gives her this money then tells me they are loans so I don’t get mad.

Chester has given Joyce and her family a lot of money, including but not limited to:

In May 2010, Joyce told Chester she was pregnant with a girl. Joyce told Chester she would give Chester’s soon to be daughter this land, so Chester gave Joyce twenty (20) acres of land in Wisconsin, worth at least $7,500.00;

Joyce receives about $1,800.0 every month [Exh. 8, 9];

In May 2011, Chester paid for Joyce’s entire family to travel to see her son’s graduation worth about $2,500.00;

Chester paid for Joyce’s trips to Haiti, twice, worth about $1,300.00 total.

I know that Chester andJoyce have money tied up to help operate her store in Haiti. About $200,000.00 is tied into it, but I’ve never seen any financial returns and it is not reported on our tax returns;

In 2011 in several payments, Chester gave $2,400.00 to Joyce’s daughter, Lena Nelson, to open her clothing store, named Catwalk, in Wisconsin;

I also know that Chester gave money to Joyce, recently, to open a daycare in St. Paul, but the amount and date, I am not sure of;
Chester gave Joyce’s youngest daughter a car and a computer. they are worth about $3,000; and
This does not include the money given to Joe Nelson, Joyce’s brother in law or any of Joyce’s children.

Contribution of Each party Toward the Value of the Marital Property: please see paragraph 4aii.

In summary, I know Chester can afford to help me and I simply do not think this situation is fair.

Chester Mack : Rose Mack : Joyce Johnson:

$40,000.00 net annual income $3,365.00 net annual income $20,000.00 net annual
$6,000.00 annual expenses $18,120.00 annual expenses income from Chester
needs apx. $500.00 monthly
Health insurance No health insurance in U.S.
10 miles to medical care 6,200 miles to medical care
Marital property: -$8,449.00 Marital property: -$28,449.00

[Motion ¶ 12, 13, 14] I will also ask for Chester to pay for my attorney’s fees and costs to file this motion. Chester makes statements, which are untrue and challenges my attorney for the simplest things. For instance, he demands to be referred to as attorney pro se, when he does not hold an attorney license. There is nothing to keep down the costs that I incur when Chester represents himself and contacts my attorney several times and argues over things he does not understand. If Chester would agree to give me adequate spousal maintenance, pay for medical expenses, and stop transferring money and property to Joyce Johnson I would not have to file this motion at all. Therefore, I seek the court’s assistance.

Dated: 1/4/2012 Notarized statement signed by Rose Mack , Petitioner

*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***
*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***

 

(14) Respondent’s Reply to Petitioner’s Application for Temporary Relief Without Children (January 4, 2012) See divorcebook.html, chapter 19.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

In Re the Marriage of: Case No. 27-FA-11-2008

Rose Fen Mack Petitioner

and

RESPONSIVE NOTICE OF
MOTION AND MOTION

Chester Arthur Mack, Jr.
Respondent

To: Su-Mei Kang Ming attorney for the above named Petitioner
The Kang Ming law office
8xxx Wayzata Blvd. Suite 320
Golden Valley, MN 55426

PLEASE TAKE NOTICE that there will be a hearing before the Honorable Referee Susan Raleigh at Room 517 of the

___ Court Tower of the Hennepin Country Government Center, 300 S. 6th Street,
Minneapolis, Minnesota

_x__ Hennepin County Family Justice Center, 110 S. 4th Street, Minneapolis,
Minnesota

on Tuesday, January 24, 2012 at 3:00 o’clock in the p.m. or as soon thereafter as this matter can be heard.

The Respondent will move the Court for an order as follows:

1. Denying Petitioner’s request for relief requested in numbers: 1, 2, 4, 5, 6, 7, 8, 9 (except for seeking credit in the name of the petitioner) , 10, 11, 12, 13 of her motion for temporary relief and accepting Petitioner’s request for relief requested in numbers: 3, 14

2. See attached sheets for Respondent’s requests

3. For such other and further relief as the Court deems fair, just and equitable

________________________________
Respondent

1702 Glenwood Ave., Minneapolis, MN 55405 (612) 374-xxxx

 

Statement of Respondent’s motions

The Petitioner or her attorney are required to give the Respondent a list of all financial documents, personal records, computer print-outs or other of Respondent’s property removed from his office or living quarters without his knowledge and consent. The attorney is required to return to the Respondent all photocopies of materials taken from his office or living quarters and is barred from using any information derived from those improperly obtained photocopies in a divorce trial.

The Petitioner is required to produce written documents relating to the sale of an apartment in Beijing, China, in the late summer of 2010 and indicate the total amount of money expressed in U.S. dollars which she received (which the Respondent believes to be around $100,000.00) from that sale. The Petitioner shall also produce written documents that account for the total expenditure of funds taken from the proceeds of that sale and to indicate how much of the money, if any, remains in her possession from the proceeds of that sale.

The Petitioner is required to furnish photocopies of all pages in her current U.S. passport and expired Chinese passport, made in the presence of the Respondent so he can verify completeness, at least four days before January 24, 2010, as requested in the subpoena for documents.

The Petitioner is required to state whether or not she is allowed to use her daughter’s credit card and to indicate approximately how much money has been charged on this credit card in each of the past three months. The Petitioner is also required to state whether she is allowed to use a separate bedroom in her daughter’s town house in Herndon, Virginia, and approximately how much time she has spent in Herndon, Virginia, during the past year.

The Petitioner is required to reveal any bank accounts which she owns or controls, either separately or jointly with another person, as well as retirement accounts or other financial instruments she owns from which cash may be readily obtained.

The Petitioner’s attorney, Su-Mei Kang Ming, is required to reimburse the Respondent for all fees related to the Mediation session (pre-hearing conference) held on October 17, 2010, which he paid to his attorney, Frederick Smith, and to the mediator, Joseph Semple, because Ms. Su-Mei Kang Ming acted essentially in bad faith during the mediation session and in canceling a previous arrangement to engage the services of a FENE to evaluate the parties’ respective financial situations. The net fees paid to attorney Smith related to the mediation session total $1,921.00. The fee paid to mediator Semple equals $212.50.

The Petitioner’s attorney, Su-Mei Kang Ming, is required to reimburse the Petitioner for all fees incurred for work done after November 1, 2010, minus fees for an estimated five hours of work which would have been required to conclude the divorce on the Petitioner’s behalf had she acted in good faith, and to preclude further billings to the Petitioner for work after November 1, 2010.

Respondent asks the court to consider moving up the date of the trial to some time in March if this is possible to put further pressure on the parties to settle amicably and to minimize the time which the Petitioner might delay in seeking medical treatment in China that could have an adverse impact on her health.

VERIFICATION AND ACKNOWLEDGEMENTS

a. I have read this document. To the best of my knowledge, information and belief, the information contained in this document is well grounded in fact and is warranted by existing law.

I have not been determined by any Court in Minnesota or in any other state to be a frivolous litigant and I am not the subject of an Order precluding me from serving o filing this document.

I am not serving or filing this document for any improper purpose, such as to harass the other party to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court.

I understand that if I am not telling the truth or if I am misleading the Court or if I am serving or filing this document for an improper purpose, the Court can order me to pay money to the other party, including the reasonable expenses incurred by the other party because of the serving or filing of this document, court costs and reasonable attorney’s fees.

Date: January 17, 2012 signature of Respondent and Respondent’s address

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

In Re the Marriage of: Case No. 27-FA-11-2008

Rose Fen Mack Petitioner Second Affidavit of
and Respondent in Response
Chester Arthur Mack, Jr.
Respondent

My written statement of facts pertaining to the hearing is as follows:

Attached please find the following:

B Respondent’s Answer to Petitioner’s Application for Temporary Relief without Children (1 page)

B Affidavit in Explanation of Responses to Petitioner’s requests (2 pages)

C Comments with respect to Minn. Statute 518.552 Maintenance (1 page)

D Respondent’s Answer to Certain Statements made in “Affidavit of Rose Mack in support of Petitioner’s Motion (6 pages)

F Affidavit to Explain Respondent’s motions (5 pages)

G List of Exhibits (1 page)

plus Exhibits 1-7

These attached are intended to:

supplement my original response to Petitioner’s application for temporary relief, which was first served upon Petitioner’s attorney January 12, 2012 (see exhibit 7), which addressed new issues only

respond to claims, requests, and arguments raised by Petitioner and

states and further explains my motions re: temporary relief.

date January 17, 2012 signed by respondent and notarized by self-help technician

(B) Respondent’s Answer to Petitioner’s Application for Temporary Relief without Children

Petitioner’s Necessary Monthly Expenses:

Rent: $750.00 This is quite unreasonable. Petitioner already has exclusive use of unit #4 in the fourplex at 1702 Glenwood and pays no rent whatsoever. She also freely uses the kitchen and other facilities in unit #3 along with the respondent. The Respondent has assumed and will continue to assume virtually all utility and other expenses related to this building.

Food: $300.00 Apart from restaurant meals, the petitioner and respondent jointly spend less than half this amount per month for meals.

Clothing: $70.00 The Petitioner, who routinely buys clothing at discounts, has a huge inventory of clothing for all seasons stored in boxes, shelves, and elsewhere.

Medical and dental: $500.00 The Petitioner has often proposed receiving medical care in China as part of the divorce settlement. While she has not disclosed to the Respondent the cost of visits to doctors in Minneapolis, he has the impression it is considerably less than $500.00 per month. Many free services are available.

Car insurance $60: Respondent has already paid for car insurance for the entire year.

General comment: Respondent has paid for virtually all household expenses during the ten and a half years of marriage when the parties have lived together. There is no reason why he should have to pay Petitioner $2,100.00 per month when this arrangement can continue until the trial in May.

b. Respondent paid his attorney around $5,500.00 in legal fees until the arrangement was terminated in early October, 2011.

8. c. It is unreasonable that Respondent should be asked to pay part of Petitioner’s attorney’s fees when he submitted a complete typed agreement to settle the divorce on November 1, 2011 and Petitioner’s attorney actively obstructed the settlement process.

Additional material facts: The statement, given without evidence, that Respondent “hides property” is totally untrue. It is true that he has loaned Joyce Johnson, who is not a “mistress”, a considerable sum of money. He expects repayment for some of this. Joyce Johnson has rented unit #1 at 1702 Glenwood Avenue since December 2010. The statement that she and her family have lived in Respondent’s property “for year” is untrue. Ms. Johnson did briefly rent one of the units as an office at 1708 Glenwood Avenue in 2006 while Respondent repaired the leaky ceiling. She did not live there.

(B) Affidavit in Explanation of responses to Petitioner’s requests

There is no need for Temporary Relief when the Petitioner has exclusive use of unit #4 in the four-plex at 1702 Glenwood Avenue in Minneapolis or an apartment at 2xxx Corn Court in Herndon (VA), Respondent pays for a majority of other household expenses, Petitioner has regularly received large sums of cash from Respondent, and Petitioner has full access to Respondent’s credit card and her daughter’s Citibusiness VISA card. (See Exhibit 6.)

Petitioner intends to seek medical treatment in Beijing, China, and Respondent has agreed to pay for this treatment, but Petitioner is using the threat of uninsured hospitalization in the United States as a bludgeon to force Respondent to settle the divorce on her terms.

This request, which is accepted, describes the Status Quo.

Respondent has no automobile of his own. He paid for Petitioner’s automobile and for its motor-vehicle tabs and insurance, and needs an automobile to conduct his business. Use of this automobile should be shared amicably as it presently is.

This request suggests that Respondent harassed the Petitioner and that the Petitioner does not engage in such behavior toward the Respondent, which is untrue. Just yesterday (January 14th), I received another death threat. Of course, neither party should harass the other.

This request suggests that Joyce Johnson and her family harassed the Petitioner and that the Petitioner does not engage in such behavior toward them, which is untrue. Ms. Johnson alleges that Petitioner once tried to force her way into their living quarters. Petitioner denies this allegation. Of course, neither party should harass the other.

Ms. Johnson has never entered the parties’ living quarters when Petitioner was present and is personally fearful of Petitioner. There is no reason to restrict my or Ms. Johnson’s freedom of association.

Ms. Johnson’s daughter has just been hired as a store manager at the Mall of America. Mr. Johnson herself will manage the daughter’s start-up boutique in Stillwater. Such employment will pay the rent and also allow them to apply for back rent through an agency.

This request largely describes the present condition. However, it restricts my ability to spend money to obtain or protect a larger sum of money. It is reasonable to agree not to assume additional debt obligations in the Petitioner’s name.

This provision requires an unreasonable amount of record keeping. If the Petitioner believes that marital assets are being squandered, she can make the case at trial.

I am thinking of looking for less expensive business insurance on the three Minneapolis properties and should not be prevented from switching to a more advantageous plan.

In theory, I would favor a speedy and just resolution of this case: however I cannot do it alone. In the past two to three months, I have indicated specifically what I would accept or reject. However, Petitioner insists that the final settlement agreement be drafted by her attorney who refuses to present a draft that incorporates the parties’ agreement or takes into account my objections to previous drafts.

My wife’s attorney, Su-Mei Kang Ming, has consistently refused to present a suitable draft to settle the divorce over the course of more than two months. (I am prepared to submit a complete list of settlement proposals and emails to document this allegation of her obstructing a settlement.) She was the one who initiated the motion for temporary relief. I did not engage her services. There is no reason why I should be made to pay all or part of her fees for work that is not in my best interest.

This is accepted.

(C) Comments with respect to Minnesota statute 518.552 - Maintenance

This statute is Exhibit #3 in petition for Temporary Maintenance.

Grounds for receiving spousal maintenance include: “lacks sufficient property ... to provide for reasonable needs of the spouse”. Comment: Rose Mack owns a condominium apartment in Beijing, China, worth $220,000.00. She has often spoken of selling this apartment and buying something in the United States. If she did, she would still own a one-bedroom apartment in Beijing where she could live during visits to China.

Grounds for receiving spousal maintenance include: “is unable to provide adequate self-support ... through adequate employment.” Rose Mack was employed at Target between 2002 and 2006. She chose not to continue working after a leg injury. If she is unable to work due to cancer or diabetes, she would almost certainly be eligible for Social Security disability, which pays around $700 per month. If she can work, she has a background in hotel management and, being bilingual, she might conceivably find work that involves contact with China. She also has prospects of high-level employment in China through personal contacts.

Subdivision 2. specifically states that the maintenance order shall be ... “without regard to marital misconduct”. The petitioner’s attorney is basing much of her case on marital misconduct.

Rose has been “absent from employment” since May 2006, not a long time. Her job skills in the Target position would still be relevant.

“the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance”: Chester Mack would be carrying a debt load of $350,000 while being too old - 70 - to find additional employment above the minimum-wage level. He is carrying some debt which is at a variable interest rate and in the range of 20% to 25% annual interest. He is also approaching the limit of his available credit.

“the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property.” There was no appreciation in marital property. The Respondent’s level of debt during the marriage rose from $18,000 to more than $350,000. His real-estate assets declined when the housing bubble burst around 2006. In addition, premarital stock worth $70,000 in 2007 (Wachovia bank) plunged to $5,000 in late 2008 in the financial meltdown. The Respondent sold a vacant lot which he owned prior to the marriage for $38,000 and applied the proceeds to household expense. The Petitioner has played little or no supporting role in the Respondent’s rental-property business.

(D) Respondent’s Answer to certain statements made in “Affidavit of Rose Mack in support of Petitioner’s Motion”

Background

Petitioner’s statement: “Chester is good with money and ran for Lieutenant Governor of Minnesota in 2010.” Respondent’s statement: The fact that I ran for Lieutenant Governor in in 2010 has little to do with my handling of money. My only expense in the campaign was the $300 filing fee. The gubernatorial candidate conducted virtually all campaign activities. He asked me to join the ticket as a friend.

Petitioner’s statement: “Chester gives Joyce a monthly income and permits her to live, for free, in an apartment of our marital home.” Respondent’s statement: I have loaned Joyce money upon specific requests, not as a regular monthly income. I do not “permit” her to live in the downstairs unit. She has paid a small amount of rent; there are various compelling reasons why I have so far not evicted her, most related to asset preservation.

Petitioner’s statement: “I hear Chester and Joyce talk to each other and they say things like they should find ways to kick me out of the country.” Respondent’s statement: Since Joyce, Rose, and I have never been in the same room together, it would be difficult for Rose to overhear any conversation I have had with Joyce unless she was listening in on a telephone conversation. Joyce and I have never discussed finding ways to deport Rose. This would be futile as she is now a U.S. citizen.

Petitioner’s statement: “Chester was also arrested for bruising my lip.” Respondent’s statement: Yes, Rose did have me arrested for Domestic Abuse last February. Any bruising that might have occurred - and the photographs do not show it - was a result of my trying to free my hand from Rose’s mouth when she bit me and would not let go.

Petitioner’s statement: “Because Chester refused to purchase health insurance here, I resorted to seeking medical care in China because it was more affordable.” Respondent’s statement: The decision five years ago to seek medical care in China was mutual. Yes, cost was a factor, but another factor was that Rose preferred living in China where she felt more at home and owned several apartments. Whereas Rose made no effort to find health insurance in the United States, I arranged for her to apply for Assured Access, which accepted her. I also gave Rose $3,000 for medical expenses in China in early 2010 after the divorce was filed. My attorney, Frederick Smith, advised against giving her more until there was a settlement agreement.

Petitioner’s statement: “I’ve contributed to maintain, upkeep, and manage some of Chester’s property.” Respondent’s statement: Rose has always made it clear that she thinks being involved with my rental-property in a poor neighborhood is beneath her dignity. She hardly set foot in the apartment building at 1708 Glenwood Avenue during our ten years of marriage. I do admit that she did some work in decorating our living quarters at 1702 Glenwood but she did no work in the rental units. Her insistence that I hire a Chinese contractor to work in one of the apartment units had unfortunate consequences. With respect to 1702 Glenwood Avenue, I hired Joe Nelson to build a separate room in the basement to store Rose’s belongings in a locked area.

Petitioner’s statement: “Marital real property value = $56,998.00.” Respondent’s statement: I do not know where this figure comes from. The properties at 1715 Glenwood Avenue and 1719 Glenwood Avenue, our only marital properties, are deeply under water.

iii Petitioner’s statement: “Chester may claim he gave me cash, one time, to fix up the property, but this is not true because his money was used to cover his dental expenses and sightseeing in China.” Respondent’s statement: Rose is referring to a condominium which she sold for 700,000 yuan ($100,000) in the summer of 2010 without my knowledge or consent. She had previously spent $1,500 to $3,000 having this apartment remodeled before the sale. That money came from me as did most other money which Rose spent in China. My dental work and eyeglasses in China together cost less than $300.

b. Petitioner’s statement: “Then, right after Christmas, he (Chester) refused to give me more money and Chester, Joyce, and I argued at our home. I left and stayed with my daughter...” Respondent’s statement: As I said earlier, Joyce, Rose, and I have never been in the same room together. I do not know what argument we might have had then. I do not recall any such argument leading to a decision by Rose to visit daughter Violet.

a. Petitioner’s statement: “Chester and I live in one of the apartments of our four-plex, while the other three apartments are rented out.” Respondent’s statement: No, Rose and I occupy two out of the four units at 1702 Glenwood Avenue. This statement shows how unfamiliar Rose is with my rental-property business toward whose operation she claims to have contributed much.

b. Petitioner’s statement: “Due to numerous disruptions for international travel for medical care, it has been difficult for me to find employment.” Respondent’s statement: I am unaware that Rose has ever tried to find employment after she was injured in May 2006 while working at Target where she had been employed for three and a half years.

5. b. Petitioner’s statement: “I removed Chester as my power of attorney, but I am worried that he did something.” Respondent’s statement: Rose gave me power of attorney to refinance mortgage debt when she was in China since we both had to sign the loan documents. This power expired when the loan was approved. I do not know what she means by “did something.”

5. b. Petitioner’s statement: “I am applying for social security disability but ... there is a possibility that I will not qualify as disabled under its definition.” Respondent’s statement: When Rose and I visited the Social Security office, we were told that the barriers to her application were (1) that my monthly income from Social Security and pension (around $2,000) were a disqualification and (2) that records of her cancer treatment were in Chinese and would have to be translated into English. A divorce would remove the first barrier. Regarding the second, HCMC has received Rose’s medical records from China and is translating them for free.

Petitioner’s statement: “I search for Chinese job postings ... to see if there is anything available to me.” Respondent’s statement: My understanding is that Rose may receive a job offer as human-resource director at a hotel in China through one of her friends if her health allows such employment.

Petitioner’s statement: “I worked at Target for a few years, but I stopped working because I hurt my leg. I wanted to get medical care here, but Chester did not want to pay for it; therefore, I went back to China and received medical care for my injury and had to quit my job.” Respondent’s statement: The injury to her leg was work related. Therefore, Rose qualified for Worker’s Compensation and she, in fact, did receive some medical treatment paid by Target. I did not need to pay for this treatment. Rose voluntarily quit her job at Target. She could have continued to work there if she had wished to do so.

11. Petitioner’s statement: “I will require money to seek medical treatment in China.” Respondent’s statement: Rose has refused to tell me the nature of her illness, which she insists may be fatal. I have a standing offer to give her the $6,000 which she says she needs to receive immediate medical treatment in China even if we do not yet have a divorce agreement. Rose refuses to take me up on this offer.

Petitioner’s statement: “Chester has worked ... as a controller, who earned $110,000.00 annually.” Respondent’s statement: I never earned anything close to this figure. As a controller for six months for a small company in Wisconsin in 1980, I earned $13.00 per hour. My peak earnings were in 1995 when I earned almost $35,000.00 on an annual basis.

a. Petitioner’s statement: “Chester earns at least approximately $40,000.00, net, annually.” Respondent’s statement: Our joint federal income-tax for 2010 shows an adjusted gross income of $28,888.59, which includes a one-time insurance payment of $14,663.00. In 2009, our adjusted gross income was $26,287.16. The breakdown of a $24,000 alleged annual income from rental properties shows no resemblance to any information that I have. The $17,706.00 income figure for the apartment is not my number but something estimated by a real-estate broker who wanted to sell my building. I did not seek or engage his services. The interest and dividend income received in previous years will not repeat since I have sold most of the dividend-paying stocks to meet my wife’s expectations for a divorce settlement.

b. Petitioner’s statement: “Loss of income: $3,800 from nonpaying tenant, Joyce and family, the apartment rents for at least $1,150 per month.” Respondent’s statement: The tenants who occupied unit #1 paid only $916.00 per month (lease provided in evidence). Joe Nelson, who had a Section 8 voucher, did pay $1,150 but Rose through her consistently hostile attitude toward him made Nelson so uncomfortable he moved out and found housing elsewhere.

c. Petitioner’s statement: “I believe Chester and Joyce had been having an affair since June 2005.” Respondent’s statement: This is untrue. We had sex very infrequently in the past six years. However, Joyce got pregnant one of those times. I do not consider her a mistress.

c. Petitioner’s statement: “1. $84,000, Chester took out a line of credit while divorce conversations were taking place in December 10, 2010.” Respondent’s statement: This was not a new line of credit but the refinancing of an existing mortgage on our house plus around $15,000 to pay off the balance on a line of credit. To my knowledge, there were no divorce conversations in December 2010. They started the following month.

c. Petitioner’s statement: “In 2005, Chester complained a lot when he gave $30,000 to Joyce.” Respondent’s statement: The $30,000 figure is grossly exaggerated.

c. Petitioner’s statement: “Chester and I traveled to China every year, paying for all travel and he would travel (to) conferences all over the world ... and even ran for office in 2010 for Lieutenant Governor because he thinks he can do a better job at the balancing the budget and getting our state out of debt.” Respondent’s statement: The air travel to China was free because our daughter, Violet, used to be a flight attendant at United Airlines. The only foreign conference was at the ISCSC conference in Jamaica in 2002. I took Rose to the ISCSC conference in New Orleans in 2011. I ran for Lieutenant Governor as a favor to the gubernatorial candidate, Bob Carney, not because I delusionally thought I could fix the state’s budget.

12. c. Petitioner’s statement: “Chester took out more debt to make himself look poor for the divorce.” Respondent’s statement: This would be completely irrational, self-destructive behavior. I would never engage in such behavior.

c. Petitioner’s statement: “Chester often fights the City of Minneapolis to reduce his property taxes and refuses to fix what various housing authorities require. If he does this long enough, they will condemn his property, but I live nearby and there was not any major construction that happened.” Respondent’s statement: This shows complete ignorance of the rental-property business in which Rose claims to have participated. Minneapolis housing inspectors will not allow property owners to refuse to fix housing violations. There are massive, escalating fines for such conduct. After Rose had me arrested, Minneapolis inspectors did, in fact, condemn our house during a period when I was legally forbidden to set foot on the property. There were 36 different work orders that had to be addressed before the condemnation was lifted and I was out of trouble. Fortunately, Joe Nelson stepped in to do the work, saving our house. The work orders included fixing the ceiling of the basement and adding gutters to the roof.

d. Petitioner’s statement: “iii. In May 2011, Chester paid for Joyce’s entire family to travel to see her son’s graduation, worth about $2,500.00.” Respondent’s statement: I had offered to help order tickets on Priceline.com for Joyce and her daughter to fly to San Diego to attend her son’s graduation from Marine boot camp. I was assured that her son would reimburse me for the purchase. Instead, daughter Lena ordered an extra ticket so that her son could also attend. I was never reimbursed. This cost me about $1,300.00.

d. Petitioner’s statement: “iv. Chester paid for Joyce’s trips to Haiti, twice, worth about $1,300 total.” Respondent’s statement: When Joyce called from Haiti to say her return airplane ticket was lost, I paid to replace it so she could return home. I think the cost was around $500.

d. Petitioner’s statement: “v. I know that Chester and Joyce have money tied up to help operate her store in Haiti. About $200,000 is tied into it but I’ve never seen any financial returns and it is not reported on our tax returns.” Respondent’s statement: I have not seen any such financial returns either. Joyce does not own a store in Haiti where she had been for less than one week. Neither she nor I have $200,000, or any amount of money, tied into such a venture.

d. Respondent’s statement: There are inaccuracies in many of the other allegations in this section but it is not worth addressing all of them.

Respondent’s statement: Almost all the dollar figures given in this section are incorrect but many have previously been addressed. The numbers of miles to receive medical care are irrelevant so long as Rose and I continue to enjoy free companion service on United Airlines.

15. Petitioner’s statement: “I will also ask for Chester to pay for my attorney’s fees and costs to file this motion, etc. etc..” Respondent’s statement: Ms. Su-Mei Kang Ming is not my attorney and I have repeatedly made it clear that I do not want her services. Rose insists that the final settlement agreement be drafted by her, yet this attorney consistently and repeatedly refuses to incorporate our agreements in her drafts. She refuses to change provisions to which I object and keeps adding new “junk” with each draft. If it would help the court, I can print out all the different drafts - perhaps six of them - together with our email correspondence so that the referee can see what has happened during the past two months of negotiations. Finally, I told Rose and her attorney that I needed a suitable agreement by January 5, 2012 or I would withdraw my settlement offer. That demand was met by filing this motion for temporary relief which was delivered to me 19 days before the January 24th hearing.

(F) Affidavit to explain Respondent’s motions

The multi-page exhibit containing photocopies of the check register for my personal checking account at US Bank is an example of such a document taken without my knowledge and consent. This checking account was used for my personal and business transactions. My wife neither deposited into this account nor wrote checks upon it.

This request is relevant to my wife’s argument that she is destitute and needs spousal maintenance from me. She had an estimated $100,000 in cash last summer but presumably gave it all away to her daughter in the fall. Then, on March 4, 2011, she filed for divorce from me, requesting an allowance to pay her Bills. If she did pay a significant portion of the purchase price of her daughter’s town house in Herndon Virginia, it is reasonable to expect that the daughter would allow her to live for free in the spare bedroom if need be.

The passport photocopies are needed to establish the frequency and duration of Rose’s residence in China during the period of our marriage. I need four days to analyze the dates of entrance to China or the United States.

This information is relevant to Rose’s financial resources apart from mine.

This information is also relevant to Rose’s financial resources apart from mine.

Both parties agreed to a Financial Early Neutral Evaluation (FENE) and an order was issued on May 5, 2011 to employ Andrea Niemi as evaluator. I welcomed this procedure because it would put the spotlight of attention properly upon the parties’ respective assets and debts and ability to support themselves. I felt confident that, because I was agreeing to assume over $300,000 in marital debt, was losing money on my rental property business, and had limited ability to increase my income, the evaluator would not decide to deplete my remaining assets and keep me financially strapped for the rest of my life.

The Petitioner’s attorney, after agreeing to the FENE, evidently decided to push the “marital misconduct” aspect of this case at the expense of the financial evaluation. However, on July 15, 2011, Ms. Su-Mei Kang Ming sent an email to my attorney, Frederick Smith, asking to dismiss the FENE. She wrote: “My client does not want to participate and she told me your client does not either ... actually ... I have an email from your client that states this.” There was no such email. In fact, I sent no emails directly to Ms. Su-Mei Kang Ming after I hired Mr. Smith. I did want the FENE.

On July 16, 2011, Ms. Su-Mei Kang Ming sent another email to Mr. Smith stating: “Chester told Rose that you were not listening to him and running up his attorney’s Chester. He did not like that you charged so much, etc.” I had told Rose no such things. I never complained that Mr. Smith was not listening to me or was charging too much. At $170.00 an hour, he was giving me an income-based discount. Mr. Smith was properly incensed by the false statements that Ms. Su-Mei Kang Ming was making. He also referred to her “ridiculous settlement offers”.

In any event, the FENE was rejected. I received a telephone call from Frederick Smith informing me of that fact. He also gave me several options for proceeding and recommended that I next pursue mediation. The mediation session was held on Monday, October 17, 2011.

The mediation session, moderated by Dan Semple, lasted four and a half hours. Rose’s side was represented by Ms. Su-Mei Kang Ming, her husband, and two translators; mine, by Frederick Smith. During this lengthy session, Ms. Su-Mei Kang Ming kept harping on issues related to marital misconduct. She pulled out photocopies of pilfered documents to make her case. Her husband suggested that I had filed false income-tax returns. Mr. Smith and I tried our best to steer the conversation back to settlement offers.

On our side, Smith proposed that I sell half of my 1,000 shares of stock in Xcel Energy, then worth about $13,000, and give the proceeds to Rose. When that was rejected as being too little, Mr. Smith then proposed that Rose receive the duplex at 1715 Glenwood Avenue, which Ms. Su-Mei Kang Ming had said had a fair market value of around $225,000 on the Petitioner’s Prehearing Statement, and also assume the $175,000 mortgage against this property. Presumably, that would give her client $50,000 if the duplex was sold at the estimated price. I offered to manage the property for free for six months while the property was sold. That offer, too, was rejected. The $225,000 fair market value was greatly inflated as were most of Ms. Su-Mei Kang Ming’s other estimates of property which I might reasonably receive in a settlement.

Pressed to make her own settlement offer, Ms. Su-Mei Kang Ming proposed that I give my wife the house in Milford, Pennsylvania, which I had inherited from my parents. (It was built by my great-great grandfather in the 1880s.) With a smirk on her face, Ms. Su-Mei Kang Ming claimed that the house was worth $36,000 - “not far from your settlement proposal”. That was its value on the tax rolls but far from its fair market value. Elsewhere on the Petitioner’s Prehearing Statement Ms. Su-Mei Kang Ming had estimated that the Milford house was worth $550,000.00. She was obviously playing games. On my own Prehearing Statement, I had estimated that the Milford house was worth $175,000.00.

I quickly rejected the idea of surrendering my ancestral home and requested other settlement offers. They were: (a) that I give Rose $10,000.00 and a half interest in the Milford house, and (2) that I give Rose $10,000 and then make monthly payment of $1,000 until a total of $50,000.00 was reached. I rejected those offers, too.

It became evident that Ms. Su-Mei Kang Ming was not acting in a sincere fashion but was “playing games” with the mediation session so that the case would remain open and she might continue to generate attorney fees. Upon leaving the Family Justice Center, Mr. Smith informed me that I could expect a long, tough, and expensive process in settling the divorce. I had paid him $5,000 for work so far and was approaching the limits of my credit. I panicked and wrote the court asking that the trial date be moved up to December. Mr. Smith withdrew from representing me.

I now ask the court to require Ms. Su-Mei Kang Ming to pay me $2,133.50 both to reimburse my expenses related to the futile mediation session and to send a message to Ms. Su-Mei Kang Ming that, as an officer of the court, further game playing by her will not be tolerated. The goal is to settle, not churn activity to generate fees.

I am here proposing that the court cap my wife’s attorney fees at five hours of work since November 1st. While this would seem to be my wife’s business rather than mine, I argue that it affects my interest as well. There are at least two reasons.

First, I am hoping that my wife and I will remain on reasonably friendly terms after the divorce. I certainly do not wish for her to live in poverty. My wife revealed that her attorney has charged her for 72 hours of work done recently. I understand that she is being charged at a rate of $150 per hour. The unpaid bill would then be more than $10,000. It would consume at least 40 percent of the $25,000 that I offered to pay in a settlement. She would be left with less than $15,000 after paying those fees.

On November 1, 2011, my wife and I reached an agreement to settle the divorce. It was expressed in a list of ten points comprising Exhibit 3 in my “new issues” submission. At the same time, to make it easier to draft a settlement, I composed a nine-page “Findings of fact, conclusions of Law, order for judgment and judgement and decree” document which incorporated the points of agreement, based on other divorce decrees. My wife expressed concern that my draft might not be in the proper legal form. We agreed to submit it to her attorney to review from that standpoint. I expected that it would take an hour at most to amend my document and make it acceptable for submission to the court.

Instead, I found that Ms. Su-Mei Kang Ming would not prepare such a document. She added new provisions, favorable to my wife and detrimental to my interest. She often inserted false information. For example, she included a statement that I earned $1,400 per month from my rental property business although our federal income-tax return showed that I lost $1,400 per month. She said I had given Joyce Johnson $135,000 refusing the substantiate that figure. She claimed that my wife had contributed $15,000 in labor toward improving the apartment building at 1708 Glenwood Avenue although Rose has seldom set foot in that property.

Ms. Su-Mei Kang Ming also included provisions in the document which I suspected might be legal tricks. Knowing that failure to answer the original petition might mean that the Petitioner would be granted judgment by default, I was therefore alarmed to find this provision in the agreement: “Respondent has agreed to withdraw his Answer in its entirety.” I was further alarmed to find under “Waiver of Counsel” this statement: “I have freely and voluntarily chosen to represent myself and hereby waive my right to be represented by counsel for the purpose of the foregoing marital termination agreement. Petitioner can proceed by default without any further notice to me.” Ms. Su-Mei Kang Ming assured me that this was standard language in the Waiver of Counsel statement. I could not find it in a published book of forms.

This has gone on for more than two months. This attorney would send me a proposed agreement, I would point out defects, she would either fix them or not, but would then invariably slip in new objectionable provisions. In the latest version, for instance, Ms. Su-Mei Kang Ming is characterizing most of our $350,000 debt acquired during the marriage as my non-marital debt while characterizing as “marital property” stocks that I purchased before the marriage. I simply cannot get a clean document from her. Yet, my wife insists that she will only sign an agreement to settle the marriage which is drafted by her attorney.

When I have complained to my wife about what her attorney is doing and have suggested that it would increase her legal bill, she invariably replies: yes, but you’ll be paying for it. The only reasonable interpretation is that my wife and her attorney have discussed a scheme to get the court, by hook or crook, to have me pay for her attorney bills. After all, I am not an attorney and do not know the tricks. If my wife currently owes her attorney more than $10,000 in past bills which she cannot pay, there must be an understanding that if she remains loyal to this attorney and does not fire her and settle on her own, there will be no serious effort to collect on the debt. Maybe the case is handled on a contingency-fee basis. The plan is for me to pay my wife’s legal fees.

I would argue, to the contrary, that all the “work” which Ms. Su-Mei Kang Ming has performed on my wife’s behalf during the past two and a half months has been aimed at preventing a settlement, not facilitating one. Exhibits 4 and 5 show that the attorney’s later proposal is less acceptable as a basis of settlement than the one drafted on November 1, 2011. Progress has taken place in reverse. So why should anyone have to pay for this kind of “work”, designed to keep this case going so that the attorney can continue to receive fees?

Meanwhile, I have been harassed by various threats:

that if I do not settle on their terms, Rose will seek medical treatment in the U.S. rather than in China and try to stick me with the bill. I will have to sell my apartment.

that I may be reported to the IRS for preparing fraudulent tax returns, using documents pilfered from me

3. that it is useless for me to proceed on my behalf since the judge, like Rose, is a recovering cancer patient

As a second point, I think my wife and I could settle if the heavy burden of unpaid legal fees hanging over my wife’s head is removed. There would then be no threat of immediate debt collection. I would not have to worry about future tricks to shift Ms. Su-Mei Kang Ming’s bill to me. Again, my wife’s attorney has been playing games with the settlement, not making a sincere effort to facilitate it. I propose giving her payment for five hours (a reasonable time needed to close the deal) and forgiving the rest of Rose’s debt.

My wife and I both want to get on with our lives. The date in May was selected with the understanding that my attorney then, Mr. Smith, would be on vacation for several months during the winter. That limitation no longer exists. We may need a month or two to prepare for a trial, but not much longer.

(G) List of Exhibits

email from Frederick Smith, Respondent’s attorney, to Su-Mei Kang Ming, Petitioner’s attorney, and to Chester Mack, dated July 15, 2011

email from Frederick Smith, Respondent’s attorney, to Su-Mei Kang Ming, Petitioner’s attorney, and to Chester Mack , dated July 16, 2011

email from Frederick Smith, Respondent’s attorney, to Chester Mack, dated April 19, 2011, also including an email from Su-Mei Kang Ming whose client is declining a $25,000 settlement offer. Notice that Mr. Smith advised against making such a generous offer.

photocopy of an invoice from Frederick Smith to Chester Mack that documents his expenditure of $1,989.00 in legal fees related to the mediation session on October 17, 2011.

Copy of a check drawn on US Bank documenting payment of $212.50 payment to Twin Cities Mediation for 4.5 hours of work on October 17, 2011.

Schedule of money received by Rose Mack in credit-card charges, checks, or cash in 2009, 2010 and 2011 above and beyond normal household expenses

[Note by respondent: My response was a mixture of new and existing issues. My wife’s attorney prepared a second and then a third set of documents for the hearing on January 24, 2012, which I did not attend due to incarceration. I responded to the second. Given 48 hours to do so, I then prepared a third set of documents. I have not included them here since they merely continue the rancorous discussion begun in the first set of documents and do not illustrate new types of documents.]

 

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(15) The Referee’s Decision regarding Temporary Maintenance (March 18, 2012) See divorcebook.html, chapter 22.

ORDER FOR TEMPORARY RELIEF

“This matter came on for a hearing on January 24, 2012. Present is petitioner, Rose Mack, with her counsel Su-Mei K. Ming. Respondent was not present and is representing himself pro se. Respondent (had) unforeseen circumstances which did not permit him to attend the hearing, therefore the court permitted respondent, Chester Mack, to argue his motion through written submissions to the court and for petitioner to respond with written submissions.

Based on the files, records, affidavits, and arguments, therein, the court finds as follows:

FINDINGS OF FACT

The parties were married on January 24, 2000. On March 18, 2011, dissolution of marriage was filed. In this Order Petitioner will hereinafter (be) referred to as Wife, and Respondent as Husband.

Wife is 55 years old, and Husband is 70 years old.

Neither party is employed. They have been meeting their needs through a variety of sources. The court is unable to determine the nature and extent of the parties’ assets, income or debts based solely on the contradictory affidavit evidence. For example, Husband claims Wife sold some property in China worth approximately $100,000. He believes she still has some of those funds, and that she purchased a home for her daughter where she can live rent-free. He also alleges she has other real estate in China worth over $200,000. The Wife believes the Husband has monthly income of $6316 from his retirement and investments, and the Husband claims he is incurring losses each month. She also claims he has been dissipating marital assets and income in the amount of approximately $90,000 by paying them to his ex-Wife, which he denies. In light of the great disparity in allegations, the matter will need to be resolved through oral testimony at trial. The trial is currently set for May 7 and 8, 2012. Therefore, any temporary Order that the Court issues will only be in effect for a few months. It is not feasible for the Court to make these important findings of fact based solely on the conflicting affidavit evidence.

The parties acknowledge that Mr. Mack has been supporting Ms. Mack during the marriage. The Court will order that he continues to pay for these basic living expenses without any decrease. He does not wish to pay for any more of her medical costs, which is an issue in dispute. She has a serious medical condition. Due to a recent claim of domestic abuse, the Wife cannot share living quarters with the Husband and she will need a suitable separate residence.

The Court cannot determine the parties’ abilities to pay attorney’s fees based on the above. That issue will be reserved to trial.

NOW THEREFORE, IT IS HEREBY ORDERED

Husband shall continue to provide for Wife’s housing, food, and transportation pending trial as is and for temporary spousal support.

Wife will have the exclusive use of the 1995 Mercury Tracer, however, she will be required to pay for the insurance and any necessary maintenance on the vehicle while she has possession of the vehicle.

3. Husband shall abide by the Domestic Abuse No Contact Order issued in Hennepin County Criminal Court.

Wife is granted exclusive right of occupancy for 1702 Glenwood Avenue, Apt. #4, Minneapolis, MN 55405 for a reasonable time, until petitioner is able to secure another residence that has a functioning kitchen. Husband shall pay the costs of deposit, rent and moving costs on a temporary basis.

Husband shall not be permitted to enter into the Wife’s residence at any time, or at any address.

Unless for necessary living and business expenses or by mutual written agreement, neither party shall transfer any assets or income, and both parties shall account for all transfers from January 2010 to the date of this order.

THE FOREGOING FACTS WERE FOUND BY ME AFTER DUE HEARING AND SUBMISSIONS AND THE FORG(O)ING ORDER THEREON IS RECOMMENDED.”

The order was signed on March 18, 2012

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter..

 

(F) RESPONDENT’S COMPLAINT AGAINST PETITIONER’S ATTORNEY

(16) Complaint of Respondent against Petitioner’s attorney at the Minnesota Office of Lawyers Professional Responsibility (February 9, 2012) See divorcebook.html, chapter 23.

Complaint #1 Attorney Kang Ming tried to trick my server into not serving the Answer to her divorce petition.

Attorney Su-Mei Kang Ming served me with a divorce petition on March 8, 2011 while I was temporarily living apart from my wife, Rose Fen Mack. The petition stated: “You are hereby summoned and required to serve upon petitioner’s attorneys an answer to the petition that is served upon you together with this summons within thirty (30) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in this petition.”

I prepared an Answer and, on March 25, 2011, had a friend, Alan J. Nelson, deliver its document to the law office of attorney Kang Ming at 8xxx Wayzata Boulevard, suite 320, Golden Valley, MN 55426. I sat in a car in the parking lot of the attorney’s office building as my friend brought the papers inside. In five to ten minutes, Mr. Nelson returned to the car with the papers unserved. Ms. Kang Ming had left the office. However, she had told Mr. Nelson on the telephone that it was not necessary to serve the Answer since the case had advanced beyond that point. A settlement conference was already scheduled. My server, Joe Nelson, therefore, returned to the car.

I knew that my wife and I had not yet agreed to settle. I asked Mr. Nelson to go back to the attorney’s office and make sure that the Answer was delivered. It was left with a person in the office named Judy Laise. I realized that the consequence of not serving the Answer within thirty days was that the court might grant the petition by default. Attorney Kang Ming seemed to be employing trickery with respect to a man untrained in the law to attempt to achieve that result.

Applicable rule 4.1 “TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law.” Comment: The false statement of fact was to tell the server that the case was close to settlement when it was not. Ms. Kang Ming had already rejected my settlement proposal. See also rule 8.4 regarding dishonesty and misrepresentation.

Complaint #2 Attorney Kang Ming repeatedly sought to meet with me privately to negotiate a settlement knowing that I was in the process of hiring an attorney to represent me in the divorce.
In an email sent on March 28, 2011, at 10:02 a.m. (page 3) I disclosed to Ms. Kang Ming that I had an appointment to hire a lawyer, Frederick Smith, to represent me in the divorce. I added: “It would not be in my best interest to meet with you before consulting with this attorney.”

Nevertheless, Ms. Kang Ming repeatedly attempted to get me to meet with her privately in her office to negotiate a settlement without the advice of an attorney. From her email on March 28th at 10:14 a.m.: “When would you like to come into my office?” I respond at 10:29 a.m. on March 28th: “I think a visit would have to come after I meet with Mr. Smith on Wednesday morning.”

Nevertheless, Ms. Kang Ming wrote in an email at 10:57 a.m. on March 28th: “If you wanted to come in before or after meeting your potential attorney, then this is fine. Please schedule a time with me so I can book the conference room. We are both in agreement to move quickly so everyone can move on with their lives, and hopefully be friends again ... thus a conference would be good.” At 2:28 p.m., on March 28th, I wrote: “Please let me confer with the attorney first. Thanks.”

Nevertheless, Ms. Kang Ming was still asking me to set up a meeting. She wrote on March 29th at 1:35 p.m. “Do you wish to discuss with your potential attorney prior to setting a time to meet with me? Or would you rather set a time to meet with me now, but at a date some time after meeting the attorney?” I told her at 3:09 p.m. that day that I would be meeting with my attorney on the following morning, March 30th. Ms. Kang Ming’s message sent on the morning of March 30th was to suggest that I might meet with her that morning; otherwise, on Thursday at 10:00 a.m.

The point is that attorney Kang Ming would not wait until I had had a chance to ask my prospective attorney what to do. She wanted to rush a meeting with me privately. Technically, I had not yet hired Mr. Smith, but I had clearly indicated that I wished to defer discussion of the divorce until I had an opportunity to talk with him. I believe that such maneuverings by an attorney to speak directly with a client who had engaged an attorney’s services or seriously contemplated such might be a violation of professional ethics.

RULE 4.2: “COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” Comment: Technically, I was not then represented but Ms. Kang Ming knew of my intention to hire Frederick Smith and my desire to defer negotiations until I was represented.

Complaint #3 Instead of doing proper discovery, Attorney Kang Ming has encouraged her client to take personal financial documents, computer records, and other items from me without my knowledge or permission and she refuses to give an accounting of what has been taken.

My wife had me arrested on trumped-up charges of domestic assault on February 18, 2011; and, on March 8, 2011, she filed for divorce. The resulting no-contact order banned me from my home. My wife said that her attorney, upon considering whether to take the case, had asked for evidence to support certain allegations that she had made in seeking the attorney’s services. While I was living in another house, tenants in my vacated home said they heard people walking about in my office. It turned out that, while I was gone, my wife removed my present and past check registers (pertaining to an account which I alone used for personal and business purposes) and perhaps other documents such as computer files, real-estate deeds, stock and certificates, and took them to attorney Kang Ming’s office for photocopying. Several other items such as my digital camera, my passport, and a recording device later came up missing. Attorney Kang Ming produced a stack of photocopied pages from my check registers as evidence both at the Mediation session on October 17, 2011, and subsequently as exhibits to her motion for temporary relief presented on January 5, 2012. My requests for an accounting of what was taken (and, hopefully, return of the documents themselves) have been rebuffed.
I have attempted to correct this situation on two occasions.

On November 16, 2011, I wrote in an email to attorney Kang Ming: “You are using information stolen from me and I am quite unhappy about that.  At the pre-trial hearing, you displayed a stack of documents which I understood to be photocopies of my check register.  Your husband, who I have learned is an accountant, also implied at this hearing that I had cheated on my income-tax return.” She replied: “This information is not stolen, again these accusations are unnecessary.  Please stop giving Ms. Johnson money and then keeping good records of doing so.  I can see that all you will do is sling speculation and conjecture at me, thus I will stop reading here. “

Again, on November 30, 2011, I wrote in an email to Ms. Kang Ming: “Much of the information which you have used in your draft is presumably based on documents taken from me without my knowledge and consent.  I do not know which documents were taken.  I do not know if you retain the originals of documents which I might need.  It will be difficult for me to evaluate this information unless I know its source.  For one thing, I need to know if the information came from me.  Please give me a list of all the documents belonging to me which you received outside the normal scope of discovery.”

Ms. Kang Ming refused my request, saying: “Everything Rose gave to me was left in plain view at your home.  She owns that place with you equally.  Nothing is outside what I would normally request in informal or formal discovery.  Are you getting someone to tell you that it is?  I'd like his or her name because this person does not know what they are talking about.  A wife can bring me financial documents from her home, especially one who requires an interpreter and doesn't know what she's grabbing.  If you want to do discovery, we most certainly can, but it will be mutual requests.  I have been sitting here knowing you have been dishonest with me for a while.  Please stop these games and let's get you and Rose divorced.   I do have to say you keep nice records.”

RULE 4.4: “RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Comment: At the time that some of these documents were taken, I was a third party, being not yet a party to any divorce proceedings.

Complaint #4 Attorney Kang Ming has relentlessly made an issue of my “marital misconduct” as a basis for settling the divorce instead of focusing upon a just and equitable division of marital assets and liabilities. She often uses inflammatory language and misrepresents the situation.

While my wife was in China for three or four months in early 2011, she received treatment in a Beijing hospital to remove a cancerous tumor in her lower intestine. At some point during this period, my former wife, Joyce Johnson, visited my home and we had sexual relations. Ms. Johnson later said that she had become pregnant from that incident.

Having a child of my own had been a life-long dream. Wishing to prevent an abortion and protect the prospective mother’s health, I gave Ms. Johnson money for various purposes during the pregnancy. When a landlord evicted her, I allowed Ms. Johnson, then pregnant, to occupy first an efficiency apartment in my building at 1708 Glenwood Avenue in Minneapolis and then a three-bedroom apartment at 1702 Glenwood Avenue in Minneapolis, below where I lived. Ms. Johnson agreed to carry the pregnancy to term even if I would not divorce my wife and marry her. However, the fetus died and was removed from her body in early December 2011. When my wife returned to the United States in January, 2012, I told her about the pregnancy. She became enraged and later filed for divorce.

There are legitimate reasons for my wife to have become upset about this situation; however, Ms. Kang Ming has elevated and repeated them excessively. Minnesota is a no-fault divorce state. Since there were no children in this marriage, the division of marital assets and liabilities ought to be the center of divorce discussions. Ms. Kang Ming has made sure that it is not. She has repeatedly referred to Ms. Johnson as my “mistress” or “paramour” suggesting incorrectly that we had a frequent, ongoing sexual relationship. I can only recall that it happened only once.

Knowing that “the judge is a recovering cancer patient” (11/30/11 email), Ms. Kang Ming has stressed the conjunction of the sexual encounter and my wife’s cancer treatment. She has repeatedly suggested that the encounter took place while my wife was receiving treatment in the hospital - maybe I was even conscious of my wife’s hospitalization while having sex! - when, in fact, it could have happened weeks outside the period of her hospital stay. My wife and I had not slept in the same bed for months before she left for China so I was probably overly eager when the opportunity presented itself. This visit to China for several months was only one of several extended stays she has had in China for medical, touring, and other reasons during our marriage.

I have no doubt that the purpose of emphasizing marital misconduct is to derail discussion of property settlements and run up the attorney’s Chesterings. My wife has become persuaded that the court would ultimately make me pay a large share of her Chester. In a sarcastically romantic flourish, Ms. Kang Ming lists as Exhibit 8 in her 2012 motion for temporary relief: “2010 Chester Mack ’s Checkbook Ledger (hearts indicate Joyce Johnson)”. While I did lend Ms. Johnson money during the last two years, the loans were often for the purpose of asset preservation. She had a plausible plan to repay the money.

The arguments about marital misconduct and emotionally loaded language related to this have continued throughout the divorce proceedings. On April 19, 2011, my attorney, Frederick Smith, wrote Ms. Kang Ming after she had twice referred to Joyce Johnson as my mistress: “I would appreciate it very much if you would refrain from referring to Chester's ex-wife as his mistriss (sic). It serves no useful purpose in this case.” Yet, on April 21, she wrote Smith: “I believe your client has not been given the bad news, legally, of what happens when there's a mistress in the picture.” On June 22, she wrote: “there is a clear history of Chester giving money to his mistress and her family.”

In my wife’s prehearing statement issued October 10, 2011, attorney Kang Ming even inserted this extraneous passage into Section 5, under Real Estate assets, referring to the first floor apartment in the parties’ house: “4 bedroom + 1 bath = potential rental income is $1100 monthly. Ms. Johnson who is Mr. Mack ’s ex-wife (no spousal maintenance or equitable division of marital assets in their Decree) became Mr. Mack ’s paramour during Ms. Rose Mack ’s cancer treatments in 2010, Ms. Johnson has been staying in this residence at no cost and Mr. Mack has written extensive amounts of money to her and the 7-8 children Ms. Johnson has that are not biologically related to Mr. Mack .” She made sure that the judge was aware of the situation at all times.

I was led to believe that the Mediation session ordered for October 17, 2011, would be a serious discussion between the parties to try to reach a settlement. Instead, my wife and her attorney, aided by three interpreters, turned the occasion into a circus whose main act was to explore how much money I had given my ex-wife as a result of our “affair”. Ms. Kang Ming brought out her stack of pilfered documents and began her one-sided presentation. My attorney, Frederick Smith, and I tried to steer the discussion back to finances and a potential settlement. When we demanded that they make an offer, it was grossly disadvantageous to me. (Under court order, I am not at liberty to disclose the exact amount of this “confidential settlement offer”, but, rest assured, it was not a serious offer.) Not long afterwards, I realized that I could no longer afford to engage the services of my attorney and he withdrew from the case. Otherwise, the unproductive conversation about mistresses and misconduct might have continued for months.

Comment: No specific rule violation but, in emphasizing marital misconduct, Ms. Kang Ming violated the spirit of “no fault” divorce law which focuses upon an equitable property settlement.

Complaint #5 Attorney Kang Ming spent weeks negotiating arrangements for a Financial Early Neutral Evaluation (FENE) and then killed this procedure, falsely claiming that I opposed it.

The first effort to settle the divorce involved finding a neutral evaluator to investigate my wife’s and my financial situations and make a recommendation for a fair settlement. As early as April 6, 2011, attorney Kang Ming emailed her recommendation from the FENE list. On April 25, 2011, she agreed with the selection of Andrea Niemi as the evaluator. But then, after discussing this and other subjects for months, Ms. Kang Ming suddenly wrote in a letter to Smith on Jun 29, 2011: “My client has made it clear she does not want anyone to call the FENE evaluator until July 5th, 2011. It appears that Chester does not want to participate in the process.” This was totally untrue. I did fervently want the FENE because it would put the spotlight of the divorce proceedings upon our respective finances, where it properly belonged, and de-emphasize the marital misconduct.

An angry exchange of emails then took place between the two attorneys. On July 15, 2011, Ms. Kang Ming wrote: “Let’s discuss how to proceed with the dismissal of the FENE.  My client does not want to participate and she told me your client does not either . . . actually . . . I have an e-mail from your client that states this.” Mr. Smith replied: “My client wants to have the FENE. It is Court-ordered and the parties cannot simply agree to do otherwise.”

On July 16, 2011, Ms. Kang Ming wrote: “Are you sure?  Chester told Rose that you were not listening to him and running up his attorney’s Chester.  He did not like that you charged so much, etc.  Also, Rose is out of country.  I believe that when both parties want the FENE dismissed, stipulate to it, especially when they intend to settle anyway, as clearly shown here,  it can be by the court.” Mr. Smith replied: “Yes, I am sure. You are out of line to suggest that I am pushing for the FENE just to increase my billable hours. Making ridiculous settlement proposals and questioning my professional integrity gets us nowhere. Your client needs a good dose of reality that an FENE may provide.”

Several days later, on July 18, 2011, referee Susan Raleigh in a telephone conference with the two attorneys agreed that the FENE would not be ordered. I regarded this as a disaster. We had spent three months trying to make arrangements which suddenly disappeared. Of course, I wanted the FENE. Ms. Kang Ming did not have any emails from me to the contrary. Neither had I complained to my wife Rose that attorney Smith was not listening to me and his hourly rate was too high. These were pure lies. Yet, attorney Kang Ming was allowed to get away with them.

RULE 8.4: “MISCONDUCT It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Comment: There was deception in spending weeks negotiating the FENE and then at the last minute killing it. There was dishonesty in saying that I opposed the FENE when I did not.

Complaint #6 Attorney Kang Ming has repeatedly included erroneous statements of fact in her emails and filings and has refused to correct some even after the errors were pointed out to her several times.
One of the main errors concerned whether or not I made money from my rental property business. Our 2010 joint income-tax return, Schedule E, shows a combined loss of $13,397 for this business after depreciation; there was a gain of around $1,300 before depreciation for the year. Yet, when attorney Kang Ming was asked to help draft a settlement agreement, she wrote in Section XIV of the document issued on November 28, 2011: “The respondent is retired and receives a monthly income of $3,531.00 which consists of $1,147.00 from social security and $984.00 from pension, and from approximately $1,400.00 in net rental income.”

When I responded in an email on November 26, 2011, that the figure was a loss (of $1,116 per month actually) rather than gain, Ms. Kang Ming replied: “The $1,400.00 is not a mistake. According to the report that your realtor prepared when you were to sell the 1708 Glenwood property a few years ago, you claimed his property generated income of $9,183.77 for 2008. I believe this report to be accurate as you would have no incentive to falsify information to your realtor. The $1,400.00 from your properties is a conservative estimate of the income your properties generate.”

The “realtor” whom she cites was Philip A. Reesnes of Michel Commercial as revealed in Exhibit 5 of the attorney’s filing for temporary relief on January 4, 2012. This man had come to me offering to sell the apartment building at 1708 Glenwood Avenue after estimating its sales price; I did not engage this man’s services. His numbers were not mine. Yes, our federal income-tax return for 2008 shows that the apartment at 1708 Glenwood Avenue earned a profit of $9,183.77 that year. However, there were three other properties on that tax return and they all had losses. Our tax return for 2008 showed an annual profit of $433.65 for the four properties together in the rental-property business. By 2010, this had become a $13,397 loss. Ms. Kang Ming, whose husband is an accountant, insisted on looking at only the nine-unit apartment building and claiming it was representative of the entire business.

Despite my best effort to set the record straight, Ms, Kang Ming has continued to claim that I have positive income from the rental properties. My wife’s affidavit signed January 4, 2012, stated: “Income: Chester receives at least approximately $40,000, net annually ... (including) 4. $24,000 from the rental properties.” Our 2010 federal tax return shows an adjusted gross income of $28,889 (including a one-time insurance settlement of

$14,000) but Ms. Kang Ming insinuates that the tax return signed by her client and me is incorrect.

The latest such claim comes in Revised Appendix A to Affidavit of Rose McGuaghey (sic) in support of Petitioner’s Motion Response 2, dated January 28, 2012. This highly flawed schedule, adapted from our 2010 tax return, claimed that the total expenses for the rental properties were only $47,826 against revenues of $85,929. The affidavit states: “I have seen Chester’s utility biis and I believe they are exaggerated on the tax returns (which she signed), because his tenants pay for just about everything, but maybe some gas, electric, water/sewer/garbage. Also, a lot of our tenants are Section 8 tenants who have utility vouchers.” I have two Section 8 tenants, out of thirteen total tenants. I pay all the water & sewer & garbage bills and the gas for all but one tenant.

Another error, which makes strategic good sense from Ms. Kang Ming’s point of view, was the claim in a settlement offer dated November 28, 2011, that “petitioner” (her client) has contributed $8,000 worth of labor into this property (their home at 1702 Glenwood Avenue) which has increased the rental value and resale of the residence.” And again, with respect to the nine-unit apartment building: “petitioner” (her client) has contributed labor to upkeep the property worth $15,000 which has improved the rental value of the property.”

Joe Nelson, who handles maintenance for my properties, submitted an affidavit on January 24, 2012 stating: “ As maintenance manager for Mr. Mack ’s properties, I can testify that, from my own observations over many years, his wife did not do any significant work in the buildings. I only saw her once in the apartment building at 1708 Glenwood Avenue and that was recently ... I do not believe that Rose Mackhas ever set foot in the two rented units of the four-plex at 1702 Glenwood Avenue.” Since I purchased both properties before the marriage, the obvious purpose of these erroneous statements was to establish what Ms. Kang Ming calls a “marital component” to the two properties.

There are many other errors in the documents which Ms. Kang Ming has submitted. Among them, one finds these statements in Rose Mack ’s affidavit signed on January 4, 2012:
“I hear Chester and Joyce talk to each other and they say things like they should find ways to kick me out of the country.” My wife, Rose, is a U.S. citizen. I have never had such a discussion with Joyce. In fact, Rose, Joyce, and I have never been in the same room together.

“I worked at Target for a few years, but I stopped working because I hurt my leg (at work). I wanted to get medical care here, but Chester did not want to pay for it, therefore, I went back to China and received medical care for my injury and had to quit my job.” Rose was covered by Workers Compensation through Target which did pay her medical bills related to the work-related injury. She went to China for other reasons.
“Prior to our marriage, Chester has worked full time as a cost accountant ... and as a controller, who earned $110,000.00 annually.” The most I earned in any of my accounting positions was around $35,000.00 a year. This career ended in 1996.

Also, Ms. Kang Ming’s filings disclose that her client owns a condominium apartment in Beijing worth $220,000. They have consistently failed to mention that she also owns, or has a controlling financial interest in, another smaller apartment in Beijing.

RULE 4.1: “TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law.” RULE 8.4: “ MISCONDUCT It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Complaint #7 Attorney Kang Ming often uses insulting, abusive, or threatening language or unfounded harsh accusations in her emails to me. One would have to examine the entire exchange of emails between Ms. Kang Ming and me to judge the tone of our communications. Some examples:
From her email of November 16, 2011: “ I can see that all you will do is sling speculation and conjecture at me, thus I will stop reading here.” (She presumably refuses to read and respond to the second half of my email.)

From her email of November 30, 2011: “Are you asking me to lie to the court? ... I am an officer of the court.  I will not conceal facts.  The judge is a recovering cancer patient, might I add ... Perhaps there is a misunderstanding of what facts mean.  It is not a way to conceal things that have happened in your life from the court.”

From her email of December 5, 2011: “You have confessed to me, without any attorney/client privilege that Ms. Johnson stole from you, hence she also stole from Ms. Mack... if you are covering this theft up then it is a criminal matter that you are also guilty of.” 

From her email of December 16, 2011: I was not looking at anything or responding to anything you wrote on December 9's e-mail because you told me you had counsel. (I had said I would have an attorney review any proposed settlement agreement before it was submitted to the judge.)  Based off of this first statement in this e-mail, I believe you are being rather contentious and I am declining to read the rest of this e-mail as well ...  I have no personal interest in your divorce and your behaviorisms.”  

From her email of December 16, 2011: “When a group of people sit down, who have no formal legal training, then ask the attorney to sign off on it, it will almost always have changes.  Again, I feel you are purposefully wasting time ... Have you discussed the reason behind your rather bizarre payment schedule with my client? .. Do you have a genuine intention of paying when the divorce is finalized?” The final payment was to have been by personal check.

From her email of January 2, 2012: “I want to assist my client to settle her case, however, I do not appreciate being lied to ... Please stop playing games with me Mr. Mack. . . speculation, innuendo, and conjecture will not help this case.”  

From her email of January 2, 2012: Mr. Mack , Everything is denied and this type of behavior increases the costs of my client's attorneys fees - unnecessarily.  Please stop.  You are wasting time ... I can substantiate my facts with documentation.  I don't need to write a lengthy e-mail full of false accusations as you did.”

From her email of January 2, 2012: “Are you fishing for answers?  Look it up.”

These excerpts alone will not prove an inappropriate tone of discussion but it would waste too much time here to provide context. Were, for instance, my emails to her equally insulting? If anyone wants to see the entire email correspondence, I have saved everything.

No specific rules violation except, possibly, RULE 8.4: “MISCONDUCT It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice.”

Complaint #8 Attorney Kang Ming has relentlessly opposed a settlement between me and my wife and even sabotaged agreements already reached.
Within weeks of being served divorce papers, Ms. Kang Ming informed me that my wife was seriously ill and wished to reach a quick settlement. On the same day, in mid March, I made a significant offer over the telephone. (I am not at liberty to disclose the terms of the offer because of a court order.) Ms. Kang Ming promptly rejected it as being too little.

When Frederick Smith became my lawyer, he tried to negotiate with Su-Mei Kang Ming. All she wanted to do was make comparisons with how much money I had given my “mistress”. On April 14, 2011, Smith wrote me: “Trying to work out a settlement at this point is getting to be a ridiculous waste of time and money. She is, in effect, asking you to negotiate against yourself. “ Five days later, we received the formal response: “Fred, Thank you for proposing a settlement offer.  My client will decline, as it offers her basically nothing for the ten years that they have been married, keep in mind, Chester has rental income.”

My wife was then in China but we often spoke with each other on the telephone. On May 2, 2011, I wrote Smith that Rose wanted to “end World War III”, come back to America, and reach an amicable divorce settlement. Rose and I soon had agreed to a concrete settlement plan and I sold some of my premarital stock to meet the terms of the agreement. However, there was a small sticking point which prevented us from signing at that point. Nevertheless, attorney Smith communicated my offer to Kang Ming on June 14, 2011. We waited for a response. The response came in the form of a counter-offer made on July 14, 2011, which substantially increased the money I would have to pay and also added certain other, quite unreasonable terms. I promptly rejected this and withdrew my own offer.

Behind the scenes, based on discussions I had with my wife, it appeared that attorney Kang Ming had become the main obstacle to settlement. I wrote my own attorney on June 6, 2011: “My wife says that she will accept the language I proposed.  Her attorney is against this settlement.” Rose said that her attorney urged her to hold out for more - possibly she could acquire some of my premarital property such as the apartment building. I regarded such moves as an attempt to increase billable hours of attorney time. There may also have been the appeal, from one woman to another, of protecting a vulnerable Chinese woman from the evil intrigues of an American man.

After July, not much happened other than to prepare for the mediation session. The FENE had fallen through. I was expecting that the mediation would focus upon a financial settlement. However, Ms. Kang Ming, my wife, and her crew of interpreters (my wife speaks fairly good English) wanted mainly to discuss marital misconduct. We pressed them to make an offer. All I can say is that their offer, when it came, was grossly unfair to me. Worse yet, I had spent $2,000 in legal and other fees for this meeting. Mr. Smith and I parted ways. Thanks to the approach taken by the other attorney, we had made little or no progress toward a settlement since the case was filed in March.

After Frederick Smith withdrew from the case, I represented myself. A potential breakthrough came on or around October 31, 2011. As I was picking my wife up from a medical appointment, she begged me to settle. I offered the same settlement terms that I had initially proposed in March. My wife promptly accepted. Next day, she added another requirement. Nevertheless, I accepted these changes. I typed a list of ten points of agreement and then drafted a proposed agreement based upon them which we might present to the court. My wife wanted to show them first to her attorney. I agreed. Let Ms. Kang Ming review my document to make sure it was fair to Rose and was put in proper legal form.

During the next two months - November and December, 2011 - my wife’s attorney and I “negotiated” a settlement whose terms were agreed upon at the beginning. Ms. Kang Ming insisted upon adding new obligations for me. I went along with some, hoping to reach an agreement soon. Bowing to another demand, my “mistress”, the tenant downstairs, even agreed to live somewhere else for a time if that would aid the settlement process.

A pattern soon emerged during two months of negotiating the settlement draft: 1. Ms. Kang Ming would send me a proposed settlement agreement that was defective in several ways: (a) It did not reflect the terms of our agreement, (b) It included substantial misstatements of fact, and/or (c) It included extraneous language which I believed could cause serious problems for me. 2. I would reject the settlement proposal, stating my objections. 3. Ms. Kang Ming would then send me a new proposal. Sometimes this proposal would remove the offending passages or correct the erroneous facts; sometimes not. Invariably, however, new materials would be inserted into the text, raising new sets of problems. (I am not at liberty to go into details.) This went on and on during November and December, 2011. Five different proposals were reviewed. Finally, in an email dated January 3, 2012, I gave the other side an ultimatum: Either send me a clean document to sign by January 5th or I will withdraw my settlement offer.

The response came in the evening of January 4, 2012, when Ms. Kang Ming’s husband served me with a motion to pay my wife temporary relief. Settlement negotiations abruptly stopped. Now Ms. Kang Ming and I traded documents to be filed with the court. The month of January, 2012, was consumed with producing documents related to my wife’s request for temporary relief.

Referee Raleigh still hoped that the two sides could settle. I agreed to Ms. Kang Ming’s suggestion to come to her office to discuss a settlement face-to-face. We spent most of the time reviewing the statements of fact in one of her previous settlement drafts. A moment of truth came late in the session when attorney Kang Ming admitted that she was was not drafting a settlement agreement that represented the two parties’ wishes as I understood from my wife her role to be. Instead, she was continuing to represent her client aggressively as all good attorneys would do. If I wanted her to draft an honest document impartial to both parties, I would have to pay half of her fees.

Now it is the first week of February 2012, my wife and I have still made little progress toward settling the divorce. The first seven months, when I was represented by an attorney, succeeded only in depleting my assets and exhausting my credit. The next three have added new demands for temporary relief. Among those demands are that I pay $8,000 of my wife’s $9,000 new attorney bills related to the motion for temporary relief (because I am not an attorney and so may have wasted her time), and monthly spousal maintenance for my wife equal to my entire monthly income, plus my wife’s U.S. medical bills. Throughout this whole frustrating process, Ms. Kang Ming has prospered from a gusher of bills. I suspect that was the plan from the beginning.

RULE 1.2: “SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation ... A lawyer shall abide by a client’s decision whether to settle a matter.” Comment: My wife is afraid of her attorney who has convinced her that only she, being a lawyer, could convince a judge to sign the divorce decree.

Complaint #9 Attorney Kang Ming‘s profitable churning may be directly detrimental to her client’s health.

My wife, Rose, has had several operations in China related to breast cancer and intestinal cancer during the past several years. Once a heavy smoker, she may now have lung cancer. Rose sometimes says she will die soon. Although she will not give me the details of her medical condition, I am led to believe it is serious and real. Regardless of our divorce, I want her to be examined soon by doctors to see if her cancer has returned. A prompt examination could save her life.

In past years, Rose has received medical care in China because, having preexisting conditions, she does not have health insurance in the United States. Through my efforts, she was briefly enrolled in the Assured Access program, but this has lapsed. My assets and income disqualify her from enrolling in Medicaid. She has received medical care in China because she has some government assistance, the cost of care is significantly lower, the quality of care is not inferior to that in the United States, she has personal ties to some of the doctors, she has access to Chinese traditional medicine, and it is convenient for her to travel to and live in Beijing where she owns two apartments. Attorney Kang Ming has repeatedly claimed that Rose has gone to China for medical treatment because I am too cheap to buy her health insurance in the United States.

Rose has used her health costs as a weapon to have me settle the divorce on her terms. If I settled, she offered to continue to seek health care in China or cap my share of her medical expenses in the United States. The problem is that Rose has not allowed me to settle unless her attorney drafted the settlement agreement; and her attorney, Kang Ming, has refused to draft a reasonable agreement. In frustration, I have made repeated offers to give Rose $6,000 so she can go and receive immediate treatment in China before settling the divorce. Unfortunately, I am not in a financial position to offer to pay the tens or hundreds of thousands of dollars to receive equivalent treatment in the United States for an uninsured person. Rose has not taken me up on this offer.

As I realized that Ms. Kang Ming might only be pretending to draft a settlement. I framed the issue in these terms. Was it ethical for her to maximize her Chesterings when the resulting delay in settling the divorce could put her client’s life at risk?

My email to her on December 9, 2011, states: “Rose often predicts that her life may come to an end soon.  She believes it is essential to settle the divorce soon so she can get medical treatment that may save her life. I strongly agree. Your paramount duty as an attorney is to respect the best interests of your client.  Her interest at this point is to enjoy further life.  You need to respect this need and stop quibbling over minor points.  I have made every effort to propose how this case can be settled but you continue to throw up barriers.  This is highly unprofessional. Consider this a warning that a quick and fair settlement is what your client needs and that to ignore this need for the sake of more income is a serious ethics violation.”

Ms. Kang Ming’s reaction to this warning was to write: “I read you have counsel.  I can no longer speak to you.” (I had told Ms. Kang Ming that I had asked Frederick Smith to review any settlement agreement that we might reach through Ms. Kang Ming’s efforts before it was delivered to the judge. I did not say that I had rehired him.) Attorney Kang Ming pretends here that she cannot communicate directly with me - certainly not in regards to statements about Rose’s health with respect to her atttorney Chesterings.

I ended my email of December 16, 2011, to Ms. Kang Ming: “Again, I remind you that my wife believes it essential to get medical treatment soon.  Your persistence in putting statements in the agreement which you know I will not accept is directly and substantially detrimental to my wife’s interests.” Her reaction was much the same as before: “Based off of this first statement in this e-mail, I believe you are being rather contentious and I am declining to read the rest of this e-mail as well.” I took this to mean that my ethical challenge was not something that she wanted to read. If she stopped her reading in the middle of the email, then she would not see the final sentence (quoted above) and would not have to respond to the issue about Rose’s health.

Therefore, attorney Kang Ming has continued on the same churning course as before. She continues to submit unsuitable documents posing as settlement agreements and charges her client accordingly. I continue to repeat my standing offer to pay Rose $6,000 so she can go immediately to China and have her health condition checked. Instead, Rose and her attorney have put additional financial pressure on me in arranging for Rose to seek medical treatment in the United States.

I repeated my offer to pay $6,000 in a telephone conference with referee Susan Raleigh and attorney Kang Ming that took place on January 18, 2012. Not long afterwards, on January 22, I received from Kang Ming this email: “You had offered in the telephone hearing $6,000.00 to my client to dismiss the motion hearing in its entirety?  Is this correct?” Of course, it was not correct. I had offered $6,000 for my wife’s timely medical treatment, not to squash the hearing on temporary relief. This was yet another way to pretend that the issue of Ms. Kang Ming’s preference for legal fees to her client’s health did not exist. The unconscionable money chase continues.

RULE 1.3: “DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. [1] ... A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.” Comment: The client’s paramount interest lay in protecting her own health, not in pressing for every last dollar, especially if she might die soon. The attorney’s interest lay in maximizing legal fees.

Complaint #10 Attorney Kang Ming has tried to block my self-representation with respect to her motion for temporary relief by manipulating deadlines for service and perhaps even coaching her client to commit a crime.
While I thought we were still negotiating a settlement, attorney Kang Ming played a trick on me which Rose had said was up her sleeve: She suddenly filed a motion for temporary relief that included a ruinous request of $2,100 per month for spousal maintenance and undisclosed amounts for Rose’s medical and legal services, believed to be in the thousands of dollars.

The request was quite unnecessary. As my wife, Rose had free housing in our home at 1702 Glenwood Avenue. I paid most of the household expenses as well as those pertaining to the car. Additionally, she had use of a credit card whose Chester I paid - she spent nearly $800 in the month when the motion was filed - as well as her daughter’s credit card. I also regularly gave her cash. In other words, Rose was not strapped for funds. Her attorney’s motion was simply a harassment tactic.

The papers first were served by the attorney’s husband (an ineligible server) and then mailed so as to arrive on January 7, 2012 - 17 days before the scheduled hearing. They disclosed that I, as respondent, had only four days to file documents related to “new issues”. Meanwhile, whether or not by design, Rose began to spend large amounts of time at my computer so that I could not work on the case. She kept pestering me to respond instead to yet another flawed settlement offer made on January 4, 2012, when I should have been paying attention to the new motion. Not being an attorney, I might well have never realized the seriousness of the situation. Luckily I did, and I stayed up much of the night to draft my “new issues” answer while Rose was asleep and the computer was free.

In my inexperience and haste to compose the documents related to new issues, I had neglected to include a signature page. The self-help attorney at the Family Justice Center showed me how to put everything into proper form. I filed the “new issues” documents on January 12, 2012 - 12 days before the hearing - but I was assured that new issues motions filed 10 days before the hearing would meet the required deadline. The referee could decide of lack of a signature page - which was delivered on January 17, 2012 - would disqualify the submission. Attorney Kang Ming, of course, objected to the lack of timely service.

The hearing on her motion for temporary relief was scheduled for 3:00 p.m. on Tuesday, January 24, 2012. I was unable to represent myself then because I was then sitting in jail. On the preceding afternoon, Rose had accused me of striking her in the face. Despite having raised bail, the authorities arrested and detained me through the afternoon of June 24th.

Attorney Kang Ming denies having any part in this incident other than helping Rose find a translator. There is insufficient evidence in the police report to establish her role, if any, in this unfortunate set of events. The report says only that the arresting officer “was directed to the 4th precinct lobby regarding a domestic abuse victim ... Victim (Rose) also had an Asian female with her who stated she was her attorney ... Victim’s attorney called a language line that spoke mandarin Chinese.”

The police report also states: “While Rose was sifting through the papers in William’s room, Rose stated that Chester struck her in the face with a closed fist on her lips. I did not observe any welling, cuts, or redness on the face of Rose or on her lips. After Rose was struck she stated she left the house and came to the precinct. It should also be noted that Rose stated police were dispatched to this address during the day but it was not clear as to why. Rose requested that officers drive her home so she could retrieve some property.”

My version of the events is this: January 23rd was Chinese New Year and Rose became quite emotional. She kicked me, threw objects at me, and repeatedly demanded money from me - $600 was her minimum - as I sat on the sofa in my bedroom browsing through documents to be used in the divorce hearing that was scheduled for the next day. Suddenly, Rose lunged at the documents I was reading. I managed to retain them. Then I decided to call 911 from a telephone on a coffee table next to the sofa. As I was talking to the 911 operator, Rose grabbed a cordless phone and cut into the conversation. After 20 seconds or so, she relinquished the phone and walked out into the hallway saying she intended to visit her attorney. I waited at home until two officers arrived. After briefly describing the situation, I told the officers that I did not want Rose to be removed from the house or even have a police report made. At no time during this incident did I touch Rose. About two hours later, while I was outside shoveling snow from the sidewalk, a squad car pulled up. An officer arrested me for domestic abuse.

The complaint is that I struck Rose in the face. I deny this allegation. It is my word against hers. Evidence for my version lies in the lack of a visible injury and in the 911 recording in which Rose complains about not being given money rather than having been struck in the face. The matter will go to trial on March 26, 2012. From my perspective, this is a case of false testimony regarding domestic abuse. The question here is what role attorney Wing Ming played in aiding her client’s testimony made to police.

Whether or not attorney Kang Ming gave Rose advice on what to tell the police, it is clear that this incident was used to stunning effect in the divorce proceedings. It put me in jail and kept me there while the 3:00 p.m. divorce hearing was taking place at the Family Justice Center. Referee Raleigh refused to reschedule the hearing when attorney Kang Ming complained of the expense in bringing her people to the hearing. My friend, Joe Nelson, was not allowed to be in the room during the hearing so he could tell me what happened.

I was allowed 48 hours from the time of my release from jail to submit my answer to testimony and documents received during the hearing. Joe Nelson incorrectly believed I would be receiving something from the court. (Ms. Kang Ming’s documents arrived in the mail at my home four days after the hearing.) If I wished more precise information about those proceedings, I could order a court transcript on a rush basis, but, according to the referee, it would be “spendy”.

Much to some people’s surprise, I did meet the 48-hour deadline forcing attorney Kang Ming to submit another set of documents to the court responding to my timely submission. I submitted my answer. Ms. Kang Ming then sent me this email on February 1, 2012: “Mr. Mack , Please stop sending correspondences to the court.  (In other words, she must have the last word even if she slipped new information into her brief.) Also, to clear up any confusion, it is not a courtesy that you send me exact copies of facts sent to the court, but mandatory.” I had always done that.

RULE 8.4: “MISCONDUCT It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (g) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status in connection with a lawyer’s professional activities.” Comment: Certain of these allegations depend upon whether Ms. Kang Ming knowingly assisted her client in making a false statement to the Minneapolis police and also, of course, whether her client’s statement was indeed false. They also depend upon whether this attorney assisted a court referee in denying my right to participate in a hearing. To the extent that arrests for domestic assault in Minneapolis show systemic gender bias, Ms. Kang Ming’s participation in events leading to my arrest may qualify as gender harassment. The time games that she has played may also be prejudicial to the administration of justice.

Note: The Office of Lawyers Professional Responsibility investigated one of the complaints - #3, which had to do with taking documents from my office while I was under a no-contact order barring me from the house - and found that such action was not improper. The investigator found that, since the documents were not under lock and key, they were available to anyone in the household. In particular, my wife had a right to look at them. The other complaints were not investigated.

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Communications from the Office of the Lawyers Professional Responsibility Board

(A) The Board’s Denial of my Complaint

DETERMINATION THAT DISCIPLINE IS NOT WARRANTED

TO Complainant William H. T. McGaughey, Jr. and Eric Todd Cooperstein, Attorney for Respondent Wing-Sze Wong Sun

Based upon the entire file the Director of the Office of Lwawyers Professional Responsibility hereby determines that discipline is now warranted to Rule 8(d)(1), Rules on Lawyers Professional Responsibiltiy. the attached memorandum of the District Ethics Committee states the basis for this determination.

NOTICE TO COMPLAINANT OF RIGHT TO APPEAL
If you are not satisfied with this decision, an appeal may be made by notifying the Director in a letter postmarked no later than fourteen (14) days after the date of this notice. A Lawyers Professional Responsibility Board member will review the appeal. The Lawyers Board is comprised of 14 lawyers and 9 non-lawyers appointed by the Minnesota Supreme Court. Appeals are assigned to individual Lawyers Board members in rotation according to when they are received. The Board members’ option on appeal are limited to (1) approving this decision (2) requiring further investigation or (3) if it appears that public discipline is warranted, directing that the case be submitted to a hearing panel. This determination will generally be based upon the information which is already contained in the file.

Dated June 18, 2012 Signed by Robin J. Crabb, assistant director

(B) Rationale for the Denial

MEMORANDUM

Complainant Mr. William McGaughey

Respondent Ms. Wing Sze Wong Sun

Facts

The Complainant, Mr. McGaughey and his wife, Lian McGaughey, are getting divorced. The Respondent Attorney, Wing Sze Wong Sun is representing his wife. Mr. McGaughey said he was arrested for domestic abuse in February of 2011, and was gone from his house for a month because of a no-contact order. During that time a tenant in the building reported seeing people in his office going through things. The tenant said Mr. McGaughey’s wife was there, and possibly his wife’s attorney. Mr. McGaughey said Ms. Wong Sun had told his wife she needed financial documents, so the wife went through his office and took a lot of financial records without his permission (specifically, they seemed to be looking for documentation of a loan that Mr. McGaughey had made to a former wife). Later, at a mediation, Ms. Wong Sun produced a thick stack of financial records that Mr. McGaughey said he had not given to his wife. Mr. McGaughey also reports things were missing from his office, including his passport, a camera and a recording device. Mr. McGaughey said he repeatedly request4d an account of what was taken from the office at that time and never received it. Mr. McGaughey stated Ms. Wing sun was totally contemptuous, very uncooperative and dismissive. He feels she did not have the right to tell his wife to go into his office and take his documents.

Ms. Wong Sun’s attorney, Eric Cooperstein, reports that Mr. McGaughey’s wife had complete access to the entire living unit during the time of their marriage. Mr. McGaughey was not forthcoming about his financial information during the divorce proceedings, and therefore Ms. Wong Sun had spoken with Mrs. McGaughey several times about obtaining documentation to verify Mr. McGaughey’s income. Ms. McGaughey gathered some records from Mr. McGaughey’s office and gave them to Ms. Wong Sun. Mr. Cooperstein reports that Mr. and Mrs. McGaughey shared the same password to the computer and that most of the information obtained was located in the desk, which was not locked. Mrs. McGaughey also printed some computer spreadsheets of tenant payments. Mr. Cooperstein reports that none of the documents were marked confidential and no steps were taken to hide any documents from Mrs. McGaughey (or anyone else’s) view in the office. All of the documents were completely accessible.

Analysis

Rule 4.4(a) requires a lawyer, in representing a client, to not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. A lawyers may not disregard the rights of third persons, including unwarranted intrusions into privileged relationships. At the time Ms. and Mr. McGaughey were co-owners of the property and still married. None of the documents were marked confidential or locked away or hidden. Ms. Wong sun asked Mrs. McGaughey to gather proof of her husband’s income and she did so because the information was necessary for the divorce and was readily accessible in their office.

The investigator finds no unethical conduct in this matter.

(C) Appeal of the Board’s decision (June 20, 2012)

Dear Mr. Cole:

I have received a letter from your office dismissing the charges that I brought against attorney Wing-Sze Wong Sun. I do wish to exercise my right to appeal.

First let me say that certain statements of fact supplied by Ms. Wong Sun’s attorney are incorrect. It is necessary to understand the time line of events.

February 18, 2011: I was arrested for domestic abuse. As I was standing in the hallway, the police officer immediately put me in handcuffs without asking any questions and led me to the squad car. I was released from jail around midnight of the same day under a “no contact” order that did not allow me to come back to my home or communicate with my wife in any way.

March 8, 2011: My wife files for divorce. I was served with papers at my temporary residence in Brooklyn Park.

March 16, 2011 (approximately): Ms. Wong Sun called me on the telephone. This was our first contact.

March 18, 2011: I pled “guilty-continuance” to the domestic abuse charges and was allowed to return home. (I note that, after a second charge of domestic abuse was dismissed in March, 2012, charges against me in this earlier case were also dismissed in accordance with the plea.)

The time line is significant in terms of Mr. Cooperstein’s statement as reported under “Facts”: “Mr. McGaughey was not forthcoming about his financial information during the divorce proceedings, and therefore Ms. Wong Sun had spoken with Mrs. McGaughey several times about obtaining documentation to verify Mr. McGaughey’s income.”

1. The bulk of documents appear to have been taken while I was away from my house - most likely, in the period between February 20 and March 14, 2011. I did not have any conversations with Ms. Wong Sun about documentation to verify my income or anything else in the divorce proceedings until I took over the case in late October 2011. ( I engaged the services of attorney James Gurovitsch to represent me between April and October, 2011.) Therefore, the argument that the documents were taken because I was uncooperative with Ms. Wong Sun is patently false. The documents were likely taken before I had any conversations with her.

2. I have several email between October and December, 2011, showing that I voluntarily provided financial information to Ms. Wong Sun upon request. She, on the other hand, consistently refused to give me any information. Her answers to my interrogatories were delivered at 5:00 p.m. on April 30, 2012 - the day before we were scheduled to meet with Judge Reding to try to settle the case.

My wife and I filed joint income-tax returns. Although my wife evidently did not keep a separate copy of our tax return, she could easily have requested a copy from the IRS if she wished to verify my and our income.

The analysis emphasizes the fact that my wife and I were still married when the documents were taken. Yes, I suppose that the fact of marriage implies a certain commonality of interest. On the other hand, when my wife filed for divorce in March 2011, she became an adversarial party to a lawsuit. This fundamentally changed the nature of our relationship.

The rights and responsibilities of the parties in the divorce proceedings with respect to discovery are defined by the Minnesota Rules of Civil Procedure. Rule 26.01 states: “Parties may obtain discovery by one or more of the following methods: depositions by oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property; for inspection and other purposes; physical (including blood) and mental examinations; and requests for admission.” I do not see here that, among the approved discovery methods, an attorney or client can ransack the office of the other party in search of documents. I also do not see an exception made for discovery in divorce proceedings. These rules govern the process. My rights were violated when the rules were not followed.

The Office of Lawyers Professional Responsibility seems to think that such methods of extra-legal discovery are OK or, at least, are no “big deal” in divorce cases. I would ask you how far you would go with this theory? Is it all right for a wife to remove her husband’s financial documents if he is effectively unable to have evidence needed at trial? Is he not at least entitled to know what documents have been removed?

I would point out that I made several requests of Ms. Wong Sun for a list of documents that were taken and she consistently refused to supply such a list. I would also point out that I know of particular documents taken which were not returned. As the memorandum notes, several items of value - notably, my U.S. passport and my digital camera - have also come up missing.

I cannot prove that my wife or Ms. Wong Sun were responsible for their disappearance but such things had not happened before. I cannot prove that Ms. Wong Sun coached my wife to make a totally false allegation of domestic assault on January 23, 2012, though the police report indicates that she was present at the precinct station where the complaint was made and she used my absence (as a jail inmate) to advantage in the divorce hearing on the following day.

Mr. Cooperstein said that “none of the documents were marked confidential and no steps were taken to hide any of the documents from Mrs. McGaughey’s (or anyone else’s) view in the office. All of the documents were completely accessible.” No, before I was arrested for domestic assault on January 18, 2011, I had no reason to hide any documents from my wife, or mark them confidential, or put them in a locked storage place. But even if I had after knowing of my wife’s new motive, I could not have placed any documents in a secure place because the police officer immediately put me in handcuffs and led me away to jail (and to a month’s absence from my home) when he arrived to investigate my wife’s 911 complaint. It was physically impossible for me to have taken those precautionary steps then or in the following month.

Finally, I would point out that my complaint made to your office involved ten different types of ethical violation. You have chosen to look at only one of them. Personally, I would be included to forgive ethical lapses in a single instance but not where malice and deceit have been repeated exhibited in a variety of ways over a long period of time. Your approach seems to be different.

Your office’s ruling of “no unethical conduct in this matter” sends a message to Ms. Wong Sun that, because she is a licensed attorney, “anything goes”. It sends a message to me that your office is reluctant to discipline fellow “members of the club” especially when represented by a well-regarded attorney such as Mr. Cooperstein.

I think I have demonstrated in this letter that some of the factual assumptions supporting your decision are incorrect. There are right ways and there are wrong ways to do discovery. I would urge the board to overturn the decision.

Sincerely,

 

William McGaughey

 

(D) The Board’s Denial of my Appeal

July 4, 2012

Mr. William H.T. McGaughey, Jr.
1702 Glenwood Avenue North, Unit 3
Minneapolis, MN 55405

Re. Appeal of Director’s Disposition in complaint of William H. T. McGaughey,Jr. against Wing-Sze Wong Sun

Dear Mr. McGaughey:

I have carefully reviewed the file in the above matter and, pursuant to the Rules on Lawyers Professional Responsibility, hereby approve the disposition made by the Director. The reasons for my decision are as follows.

The Office of Lawyers Professional Responsibility is limited to investigating complaints of unethical conduct and taking disciplinary action against lawyers when appropriate. Lawyer conduct is governed by the Minnesota Rules of Professional Conduct which require clear and convincing evidence of a violation.

Based on the information in the file, I do not find clear and convincing evidence of a violation. Your Complaint #3, regarding the removal of various records, was specifically investigated for evidence of a violation. Because these records were freely available to the client, you had no expectation of privacy. Advising a client to obtain such documents is a common request in a divorce proceeding and does not constitute unethical behavior.

A lawyer has an obligation to zealously represent a client’s interests. A lawyer relies on facts, interpretations and legal strategies that are favorable to the client’s case. While you may disagree as the facts and be frustrated by actions taken during the course of this matter, there is no evidence that it rises to the level of an ethical violation.

My approval of the Director’s disposition means the matter is now closed.

Sincerely,

 

Carol E. Cummins

cc Wing-Sze Wong Sun c/o Eric T. Cooperstein
Martin A. Cole


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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

 

(G) THE DISCOVERY PROCESS

(17) Petitioner’s Interrogatories (March 14, 2012) See divorcebook.html, chapter 25.

(Note: The Petitioner’s requests are in bold print; the Respondent’s replies, in regular print.)

PETITIONER REQUEST NO. 1: State your full name, whether you have ever been known by any other name, and, if so, state that name and the circumstances surrounding it, and the date and place of birth.

My full name is Chester Arthur Mack, Jr. I have also been known recently as Chester Mackand Chester Mack . When I was a boy, I was known as “Billy”. A middle-school teacher called me “Buck”. I was born on February 21, 1941.

PETITIONER REQUEST NO. 2: Identify each item of property you claim to be your non-marital property by stating the following:
a description of the property;
the identity of the person from whom the property was acquired;
the date of acquisition
the manner in which the property was acquired (i.e. by gift, inheritance, purchase, etc.);
the fair market value at the time of acquisition
the current fair market value
whether any gains, interest, dividends, rent, or other income has been received incident ot your ownership of this property;
the disposition of any gains, interest, dividends, rent or other income received incident to your ownership of this property;
the facts upon which you rely in asserting that the property is “non-marital; and
for each item of property which you assert to be non-marital because it was acquired in exchange for another items of non-marital property, provide the information requested in subparts “a” through “g” above with respect to the original item of non-marital property that was exchanged.

I owned many different pieces of property at the time of my marriage on January 28, 2000. The more significant items would be real estate. In that regard, I owned a four-plex at 1702 Glenwood Avenue, Minneapolis; a nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis; a house at 100 Sawkill Avenue, Milford, Pennsylvania; a log cabin and wood land in Bayfield County, Wisconsin. Information on each is as follows:

1702 Glenwood Avenue:

description: This is a four-plex, or a house divided into four living units, located at 1702 Glenwood Avenue in Minneapolis, Minnesota
seller: The property was bought from HUD (Dept. of Housing and Urban Development)
date of acquisition: June, 1991
manner of acquisition: cash purchase
fair market value at acquisition: unknown The purchase price was $20,500
current fair market value: $120,000 (estimate)
income received from property: yes, rents from two units
disposition of income: deposited in checking account to pay personal and business expenses
marital: The property was purchased eight years before the marriage and no substantial additions have been made since then.
exchange: Does not apply.

1708 Glenwood Avenue:

description: This is a nine-unit apartment building on three floors, located at 1702 Glenwood Avenue in Minneapolis, Minnesota
seller: The property was bought from David Campbell and Marlys Posthumus
date of acquisition: August, 1992
manner of acquisition: cash down payment plus contract for deed
fair market value at acquisition: unknown The purchase price was $72,000
current fair market value: $230,000 (estimate)
income received from property: yes, rents from nine units
disposition of income: deposited in checking account to pay personal and business expenses
marital: The property was purchased seven years before the marriage and no substantial additions have been made since then.
exchange: Does not apply.

100 Sawkill Avenue, Milford, Pennsylvania:

description: This is a built in 1883, located at 100 Sawkill Avenue in Milford, Pennsylvnia
seller: The property was given to me by my parents who had inherited it from my mother’s grandparents
date of acquisition: January, 1995
manner of acquisition: a gift; nominally $1.
fair market value at acquisition: unknown Estimate of $175,000
current fair market value: $175,000 (estimate)
income received from property: yes, some rent received from a tenant
disposition of income: deposited in checking account to pay personal and business expenses
marital: I inherited the property from my parents five years before the marriage and no substantial additions have been made since then.
exchange: Does not apply.

20 acres of wood land and a log cabin in Bayfield County, Wisconsin:

description: undeveloped land with easement and log cabin in northern Wisconsin
seller: Chester Gustafson
date of acquisition: September, 1976
manner of acquisition: down payment and contract for deed.
fair market value at acquisition: unknown Estimate of $10,500
current fair market value: $20,000 (estimate)
income received from property: none
disposition of income: n.a
marital: I bought the property several decades ago; no improvements made since then.
exchange: Does not apply.

I also own a cartoon print of Wunderlix which has not been appraised but might be worth $30,000 plus shares of stock in the following companies: Wells Fargo, Gannett, Arbitron, and US Bank. All acquired before the marriage, their combined worth is between $15,000 and $20,000. I own a number of books of indeterminate value, including an inventory of self-published books, which is now worth little.

PETITIONER REQUEST NO. 3: Liabilities at time of marriage: Describe each and every liability you had on the date of your marriage to the petitioner; and indicate how and when each liability was satisfied.

Visa credit card with First Bank of Omaha
Unsecured line of credit #1 with US Bank
Unsecured line of credit #2 with US Bank
Overdraft protection with US Bank
Menards credit card

There were no mortgages on any property at the time of marriage. Most of the debt, estimated at around $20,000, was in the two US Bank unsecured lines of credit. The debt increased until it was consolidated in a loan from Wells Fargo in 2003 secured by a mortgage on the property at 1702 Glenwood Avenue.

PETITIONER REQUEST NO. 4: State whether you are able to trace the proceeds, whether the cash or other property, from each asset that you claim is separate property, and was disposed of during one year before your marriage to the date you sign these interrogatories, and if so, identify each record and source of information from which a tracing can be made.

All money received from sale of assets has gone into my personal checking account with US Bank. During 2011, I sold 300 shares of Pacific Gas & Electric stock (non-marital), 200 shares of Target Corporation stock (non-marital), and 1,000 shares of Xcel Energy stock (marital). In previous years I sold 300 shares of Control Data Corporation (non-marital), 970 shares of US Bank (non-marital), 1,000 shares of Metris (marital), 1,000 shares of Qwest (marital), 3,000 shares of Enron (marital) and a vacant lot at 1701 Glenwood Avenue (non-marital). Some of this money went to pay expenses related to acquisition of a duplex at 1715 Glenwood Avenue in Minneapolis and the remainder went toward general living expenses.

PETITIONER REQUEST NO. 5: During your marriage to the divorcing spouse, Rose Mack , state whether you ever prepared, or had prepared, an financial statement or list of your assets and liabilities, and if so, for each document, state:
the date of the document’s preparation;
the name and address of the persons or firm who prepared the document;
the purpose of the document; and

the name and address of the person in present custody of the document, and attache a copy of each document to your answers to these interrogatories.

I have never had a balance sheet, listing my assets and liabilities, prepared professionally. I may have given some balance-sheet information to banks when mortgages were placed on the house at 1702 Glenwood Avenue and the duplex at 1715 Glenwood Avenue but this was done informally and no record remains.

PETITIONER REQUEST NO. 6: During your marriage to the divorcing spouse, state whether you prepared, or had prepared, any records, accounts, journals or similar documents showing income, expenses, assets or liabilities, describe each record and state the name and address of the person having present custody of the record.

While there have been no balance-sheet reports, I have prepared annually a report of our combined income and expenses, including a report on the rental-property business, in the federal income-tax return. I have present custody of those records. My address is Chester Mack , 1702 Glenwood Avenue, Minneapolis, MN 55405.

PETITIONER REQUEST NO. 7: Real estate purchased since the marriage: State the amount that you contributed during the period of January 2001 to current for the purchase and maintenance of any real property you currently benefit from or expect to benefit from including;
down payment;
the monthly mortgage;
repairs;
other expenses; and
and the source of funds used to pay for this property.


I have purchased three pieces of real estate since the marriage - the duplex at 1715 Glenwood Avenue, Minneapolis, a two-foot addition to the lot at 1715 Glenwood Avenue, and a vacant lot at 1719 Glenwood Avenue. The purchase price of the duplex was $29,100; of the vacant lot, $5,000; and of the two-foot addition, around $200. The latter two were purchased in cash lump-sum. The former was purchased with a down payment and contract for deed. There is a monthly mortgage on the duplex with NationStar Mortgage. The monthly payment, including escrowed taxes and business insurance, is $1,584.68. Principal and interest are $1,195.62. Repair and other expenses vary greatly by period of time. The best source of information is Schedule E of the federal income-tax return. Sale of stock and the vacant lot helped finance purchase of the duplex. Otherwise, expenses are financed by my retirement income (state pension and Social Security), rents, some dividends, insurance proceeds, and borrowing.

PETITIONER REQUEST NO. 8: Describe all sources of your income, whether reported on any tax return, set forth the gross amount received, the nature and amount of any deductions there-fore, and the net amount received and all the assets and debts owned in the six years prior to the date that you answer these interrogatories.

The federal income-tax filed each year would reveal all sources of income in a year. There is a monthly deduction of the Social Security benefit of approximately $100 for Medicare Part B. I have no periodic records of the value of assets and liabilities since no valuation was determined.

PETITIONER REQUEST NO. 9: List the tenants that you and your company have obtained and the revenue derived from each tenant for the last five years. If any of the tenants received government subsidies, state the amount received.

See attached schedule. The Section 8 tenants have included: Alan M., Joan W., Genevieve W., Georgette W., and Stephanie H. Section 8 pays the difference between the monthly rent and 30 percent of tenants income. While the amounts vary over time, Alan M. received approximately $1,060 a month from Section 8; Joan W., $950; Genevieve W., $800; Georgette W., $970, and Stephanie H., $400.

PETITIONER REQUEST NO. 10: State all the expenses and costs of being a landlord including:
the company or entity to who you pay any Bills;
the amount paid; and
frequency of payment.

I object to this question under Minnesota Rules of Civil Procedure 33.01 as being excessively detailed and unneeded for the purpose at hand. The annual tax return for Schedule E gives a breakdown of the type of expense by property. The expenses vary greatly by month. Some of the principal vendors are Xcel Energy, CenterPoint Energy, City of Minneapolis, Waste Management, Joe Nelson, Jeff Schaller, Rental Research, UG Penn, Orange & Rockland, Milford Water Authority, Home Depot, and Menards.

PETITIONER REQUEST NO. 11: State whether you have file federal and/or state income-tax returns since the date of your marriage to the divorcing spouse, and, if so, for each return state:
whether it was separate or joint;
which year it was filed;
the address of the office in which it was filed;
the amount of taxable income reported;
the name and address of the person who prepared it; and
whether you have a copy of the return and, if so, attach a copy of each federal income tax return to your answers to these interrogatories.

Rose and I have filed a joint return for every year since 2001. We have filed returns for all years during our marriage. The address of the IRS office in each year has varied. The tax returns themselves disclose the taxable income. I was the person who prepared the tax returns with information from me and from my wife regarding our separate incomes. My address is Chester Mack, 1702 Glenwood Avenue, Minneapolis, MN 55405.

PETITIONER REQUEST NO. 12: State whether you are presently self-employed, and if so, state:
the type of business;
the place where business is conducted;
the length of time for which the business has continued; and
the net profit and loss for each of the past ten (10) years.

My main business is owning and managing rental property. I have also self-published books, especially in the early part of the marriage. The business is operated from our home at 1702 Glenwood Avenue, Minneapolis, MN 55405. Both businesses have operated for the entire period of our marriage although no books have been printed since 2004. The federal income tax, Schedules C and E, would disclose the annual profit or loss.

PETITIONER REQUEST NO. 13: State your total monthly living expenses at the time of answering these interrogatories and the source of funds used to pay their expenses.

mortgage payment $845
homeowners’s insurance $90
real estate taxes $60
utilities $160
heat $140
food $100
clothing $20
laundry $5
medical & dental $130
transportation $160
car insurance $60
recreation & travel $20
social & religious $20
personal allowance $20
home maintenance $110
interest $130

total $2070

PETITIONER REQUEST NO. 14: State whether you have outstanding obligations, including mortgages, conditional sales, contract obligations, or promissory notes, and, if so, for each obligation, state:
the name and address of the creditor;
the form of the obligation;
the date on which the obligation was incurred;
the consideration received for the obligation;
a description of an security given for the obligation;
the amount of the original obligation;
the rate of interest on the obligation;
the present unpaid obligation on the obligation;
the date and amount of each installment payment; and
when the entire obligation was due and if the obligation is due in full or the payment is due, any reasons why, you, as a creditor, did not collect on the obligation.

For Petitioner’s Request No. 14, please list a complete description of each asset the exact names or names of the record and/or registered owners thereof, the date of acquisition; the original cost, if any (and, if the same was qcquited in any other manner thn by purchase on your part, descxribe the manner of such acquisition); the current fair market value as of the date of the evaluation of any asset which you would value over One Hundred and no/100 Dollars ($100.00); and -

Comment: It is unclear whether this section covers money that I owe or money owned to me. (a) suggests that I am the debtor; (j) suggests that I am the creditor.

NationStar mortgage; Dallas, TX; mortgage; November 2007; money to consolidate loans; property at 1715 Glenwood Avenue; $182,000; 6.875%; $173,175; $1,584; n.a.

US Bank mortgage: Minneapolis, MN; mortgage; December 2010; refinance earlier mortgage & consolidate debt; homestead at 1702 Glenwood Avenue; $86,300; 4.15%; $78,255; $884; n.a.

Chase: New York, NY; credit card; April 2000; money loaned; none; $13,500; 5.0%; $3,278; $163; n.a.

Advanta: New York; credit card; 2005; money loaned; none; $5,000; 3.0%; $2,792; $140; n.a.

Menards: Eau Claire, WI; credit card; July 1996; store purchases; none; varies; 21%; $610; n.a.

FB Omaha: Omaha, NE; credit card; May 1976; money loaned; none; varies; 5.0%; $6,889; $137; n.a.

Citibusiness: New York, NY; credit card; 2004; money loaned; none; varies; 17.0%; $12,000; $250 minimum; n.a.

US Bank premier line; Minneapolis, MN; personal line of credit; January 1993; unsecured; none; varies; 9.5%; $38,762; $632; n.a.

US Bank premier line; Minneapolis, MN; personal line of credit; August 1992; unsecured; none; varies; 14.2%; $13,300; $148; n.a.

PETITIONER REQUEST NO. 15: Please list how much you have spent on attorney’s fees and cite the source of those funds.

$6,228; funds provided from retirement income and borrowing

PETITIONER REQUEST NO. 16: If you anticipate an increase or decrease in your income or any of your expenses, state the nature and amount of the increase or decrease, the reason for the increase or decrease, and the date you expect the increase or decrease to occur.

There may be an improvement in rental-property income as the tenants at 1702 Glenwood Avenue #1 pay more rent and a non-paying tenant at 1708 Glenwood Avenue also pays. On the other hand, property taxes and business insurance will continue to increase. Heating bills will be higher next year if we have a more severe winter. Maybe the loss from rental property business will decrease by $2,000 to $5,000.

PETITIONER REQUEST NO. 17: Set forth in detail each and all of your assets including real and personal property, furnishing as to each such asset the following information (even if the property is jointly owned by you and others) for the time you answer these interrogatories to the past five (5) years, even listing any transfers to another individual or entity during this time, but not limited to:
real estate (deed and mortgages or similar encumbrances);
motor vehicles and recreational vehicles (title and encumbrances);
furniture/household goods; and
any other items or property with the current fair market value over one hundred dollars and no/100 ($100).

I object to this question under Minnesota Rules of Civil Procedure 33.01 as being excessively detailed and unneeded for the purpose at hand. Valuations of personal property are minor in comparison with stocks and real estate. I do not keep records to document minor purchases.

PETITIONER REQUEST NO. 18: If any of the assets described in your Answers to these Interrogatories include an ownership by you of shares of stock in a closely held corporation, which shares represent five (5) percent or more of the issued and outstanding shares thereof set for the following as to each such corporation:
the name, date, and state of incorporation;
a detailed statement of its capital structures;
the names and addresses of all officers and directors;
a description of all of the share of stock thereof that you are entitled to vote at any shareholder’ meeting, whether such shares are owned by you outright, beneficially or voted by proxy;
as to any share or stock in such corporation owned by you, state whether or not such shares are subject to any written restrictive sales and/or purchase agreement and, if so, describe with particularity each such agreement. In lieu thereof, a copy of each such agreement may be attached hereto;
a detailed description of the nature of the business engaged in by such corporation or entity; and
the names, addresses, and ownership interest of each shareholder.

I have no such ownership interest.

PETITIONER REQUEST NO. 19: During your marriage to the divorcing spouse, state whether you purchased any securities, including, but not limited to, stocks, bonds, debentures or mortgages, and if so, for each purchased;

the type and number of securities purchased;
the name of the issuing entity;
the date of purchase;
the total purchase price;
the name and address of the broker through whom the purchase was made; and
the name and address of each person with an ownership interest in each security as a s result of the purchase.


7,000 shares BMC common stock (Buckbee-Mears); May 16, 2003; $7,000; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405
5,000 shares BMC common stock; August 7, 2002; $2650; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405
500 shares Northwest Airlines common stock; August 7, 2002; $4,240; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405
1,000 shares Qwest common stock; August 7, 2002; $1,260; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405
1,000 shares Metris common stock; August 7, 2002; $3,200; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405
1,000 shares Xcel Energy common stock; July 30, 2002; $5,700; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405
3,000 shares Enron common stock; December 3, 2001; 1,135; Recom Securities, 691 Marquette, Minneapolis, MN 55402; Chester & Rose Mack , 1702 Glenwood Ave., Minneapolis, MN 55405

PETITIONER REQUEST NO. 20: If any of the assets described in your Answer to these Interrogatories include an ownership interest represented by your sole ownership or an interest in a partnerships, joint venture or other association, such as a limited liability company, then set forth the following as to each such entity:
the name and date of its origination;
a detailed statement of its capital structure, including your investment, contributions or additions, thereto;
the names and addresses of all persons or parties engaged in or associated with you in such entity;
whether or not there is any restrictive agreement between you and any others as to each entity and, if so, describe such agreement in detail. In lieu thereof, a copy of each such agreement may be attached; and,
a detailed description of the nature of the business or activity engaged in by scuh sole proprietorship, partnership, joint venture, or other association.

I have no such interests.

PETITIONER REQUEST NO. 21: During your marriage to the divorcing spouse, state whether you transferred any property, e.g. real, personal, cash in which you claimed an interest with or without receiving fair market value as consideration of the transfer, and if so, for each of property transferred, state:

a complete description of the property;
the name and address of each transferee;
the reason for the transfer;
the amount of the consideration received for the transfer; and
whether the written consent of the divorcing spouse was obtained for the transfer.

I object to this question on the grounds that I cannot be responsible for remembering all the gifts that I have made during the marriage, many of which has already been disclosed.

PETITIONER REQUEST NO. 22: State whether you have loaned or given money to Joyce Johnson, relatives including, but not limited to Joe Nelson, Ms. Johnson’s friends, or anyone else during your marriage to the divorcing spouse, and if so, for each persons receiving such money, state:

the name and address of the person;
the total amount loaned or given;
the date of each loan or gift;
the reason for each loan or gift;
whether your divorcing spouse consent to this transfer; and
a description of any consideration or evidence of indebtedness received in exchange for each loan or gift.

Yes, I have made loans to Joyce Johnson, Joe Nelson, and others during the marriage. You have ample information about this through the informal discoveries you and your client have already done.

PETITIONER REQUEST NO. 23: State whether any person, firm, or business entity holds any property for (a) your benefit, or (b) for the benefit of another person in trust or otherwise, and if so, for each item of the property, state:
the name and address of the beneficial owner;
a description of the property;
the value of the property;
the authority under which you are holding the property (or) held in your benefit and
the conditions and terms for which the property is held.

I am unaware of being a beneficiary of a trust and I cannot be expected to know the particulars of trusts benefiting others.

 

PETITIONER REQUEST NO. 24: State whether you are expecting to receive any real or personal property worth one hundred dollars and no/100 ($100.00) or more and list the description (attach any deeds or titles), the current value of the property to be received, and explain how you evaluated this property.

I object to this question on the grounds of its being excessively burdensome in relation to your legitimate discovery needs. I cannot anticipate at this time what property worth more than $100 I will receive.

PETITIONER REQUEST NO. 25: State whether you are expecting to receive any real or personal property worth one hundred dollars and no/100 ($100.00) or more and list the description (attach any deeds or titles), the current value of the property to be received, and explain how you evaluated this property.

I based my estimate of real-estate values on an appraisal of the duplex at 1715 Glenwood Avenue in Minneapolis done a year earlier and my estimate of relative values of other properties and price trends in the Twin Cities.

PETITIONER REQUEST NO. 26: State whether you presently own, or have any interest in, any life insurance or annuity policy, or participate in any insurance program through your employment company and if so, for each policy state:

the name and address of the insurance company;
the name of the policy;
the type of policy (i.e. term, straight life, etc.);
the date on which the policy was issued;
the face amount of the policy;
the amount of the annual premium;
the total amount of premiums paid on the policy from one year before the day you were married to Mrs. Mackto the date of your answer;
the name and address of each owner of the policy;
the name and address of each beneficiary named in the policy;
the date of any change of beneficiary named in the policy;
the name and address of each beneficiary, as well as the name of each beneficiary added and deleted;
the date of the assignment of the policy, and the name of each of each assignee, if the policy as been assigned;
the name and address of the insurance agent or broker for the policy;
the name and date of each loan made on the policy; and
the present cash surrender value of the policy.

I have no life insurance policies and do not participate in other insurance programs.

PETITIONER REQUEST NO. 27: If any person, corporation, partnership, or entity of any nature owes you any money, then for each debtor state:

a .the names and address of the debtor;
b. the amount due as of the date of these Interrogatories, the basis for the indebtedness, whether there is written evidence of indebtedness, the date the indebtedness was incurred, how you accessed whether the debtor would repay the indebtedness, the manner in which the indebtedness will be satisfied, and the date of such satisfaction; and
whether the obligation is contingent and a description of any such contingency.

I object to this question on the grounds of its being excessively burdensome in relation to your legitimate discovery needs. Debts can incurred on numerous occasions.

PETITIONER REQUEST NO. 28: If any person, or entity is entitled to use any of your accounts including credit cards, bank or brokerage accounts, please state who this person is, how much they have used, what he/she has used it for, and identify the account he/she (or entity) has access to.

I have allowed my wife to use my Citibusiness credit card up to a certain limit. It is beyond the scope of legitimate discovery to provide detailed information about specific transactions.

PETITIONER REQUEST NO. 29: Set forth the names and addresses of each depository in which you have any checking or savings accounts, including money market accounts, including money market accounts, certificates of deposit, trust certificates, and the like, in your own name and/or jointly with any other party from and during January 2006 to the date of your Answers to the Interrogatories, state the evaluation and the balance in each of said accounts on such dates.

I maintain checking and savings accounts with small balances at US Bank and Wells Fargo. These are greatly outweighed by debts owed to the same institutions. I bank at the Broadway branch of US Bank and the Olson highway branch of Wells Fargo, both in Minneapolis. I do not own any certificates of deposit or trust certificates.

PETITIONER REQUEST NO. 30: If during the same time as described in immediately above, there have been any bank accounts or depositories on which your name did not appear and in which you have deposited any money, state the place of the deposit, the address of the depository, the name of the account owner, the date of your deposits, and the reason for the deposit by you in the account.

I have deposited money in a small account for Thistlerose Publications at Wells Fargo and, on behalf of Metro Property Rights Action Committee, in Twin Cities Federal. Detailed information relating to transactions is excessive in terms of legitimate discovery needs.

PETITIONER REQUEST NO. 31: During your marriage to the divorcing spouse, state whether you had any savings or commercial accounts in your name solely or jointly with others, with any bank or financial institution, and if so, for each account, state:

the name and address of the bank or financial institution;
the type of account;
the names on the account;
the names of all persona authorized to draw on the account;
the date on which the account was opened;
the date on which the account was closed;
the account name;and
the amount of the present balance, if any, of the amount of the last balance before the account was closed.

I believe this subject has been covered in Question #29. More detailed information is excessive in terms of legitimate discovery needs.

PETITIONER REQUEST NO. 32: During your marriage of the petitioner spouse, state whether there has been any bank accounts on which your name did not appear and in which you deposited, or withdrawn money by check or any other method, money, and if so, for each account state:

the name and address of bank;
each name under which the account stood;
the account number; and
the approximate date and amount of each deposit made.

I believe this subject has been covered in Question #30. More detailed information is excessive in terms of legitimate discovery needs.

PETITIONER REQUEST NO. 33: Set forth the names and addresses of the accountants or accounting firms who have done accounting work for you personally or for any business in which you have ad an interest from and during January 2006 to the date of your Answers to the interrogatories.

I have not engaged the services of accountants or accounting firms since January 2006.

PETITIONER REQUEST NO. 34:
Set forth the names and addresses of all stockbrokers iwth whom you have done business from and during January 2006 to the date of your Answers to the interrogatories.

I have sold stocks through Scottrade in the skyway of downtown Minneapolis and through the Wells Fargo stock transfer office located in St. Paul.

PETITIONER REQUEST NO. 35: Describe in detail any and all written appraisals made, whether caused to be made by, or claimed to made by the some other entity or individual, or on your behalf with respect to any of your assets listed in response to the preceding Interrogatories. In lieu, thereof, copies of the written appraisals may be attached hereto.

A written appraisal was done of the property at 1715 Glenwood Avenue in April 2010 in connection with a loan application from Quicken Loans.

PETITIONER REQUEST NO. 36: If you claim to have contributed labor or services, that you believe should affect the division of property in this proceeding, for each contribution state in complete detail:

the labor or services contributed;
the date such labor or services were contributed;
how the labor or services increased the value of any assets of the marriage; and
the value of each contribution and the methods used to obtain the valuation.

Without significant assistance from my wife, I have managed all rent-bearing properties owned during the marriage and done some of the physical work myself. The specific contributions which I have made toward purchasing and maintaining the properties are too numerous and varied to list here.

PETITIONER REQUEST NO. 37: State the name and address of each witness, expert or otherwise, that you intend to call on your behalf in this proceeding and for each such witness, state:

the substances or the facts and opinions to which the witness is expected to testify;
a summary of the grounds for each opinion; and
the contents of any documents that the witness will rely upon.

I intend to call Joe Nelson and Joyce Johnson as witnesses at trial. Having extensive personal experience, they will testify as to my wife’s contribution to the marriage and maintenance of property or lack thereof, my wife’s abusive personal behavior, her removal of objects from the house, her absence from Minneapolis, and other matters of which they have first-hand knowledge.

PETITIONER REQUEST NO. 38: State the name and address of each person who has knowledge or relevant facts concerning the issues in this action.

This question is too broad and unfocused to have any relevance here.

PETITIONER REQUEST NO. 39: State whether you will transfer any assets to, for and in consideration of, a waiver of alimony,and, if so, describe each asset and provide the estimated value of each assets.

I have no such plans.

PETITIONER REQUEST NO. 40: If you have been involved in any legal proceedings, have had the police department called, or have been reported, or charged with a crime at any time since January 2006, for each matter state the:

type of matter and nature of the claims;
names of the involved parties;
the date the proceeding was commenced; and
venue, case caption, and case number of the proceeding.

I have been arrested and prosecuted twice for domestic abuse on trumped up or bogus charges brought against me by my wife and, in the second case, with possible collusion from her attorney. The dates of those arrests were February 18, 2011, and January 23, 2012. The case numbers were 27-CR-11-5037 and 27-CR-12-2031. The prosecution dismissed the charges against me on March 26, 2012.

PETITIONER REQUEST NO. 41: State whether you have executed any last will and testament, and, if so, state:

the date of execution;
the place of execution;
the date of revocation, if any;
the date of each codicil and amendment;
a description of each specific bequest or devise, including a description of the property, and the name and address of beneficiary;
the name of each person receiving the residuary bequest;
a description of each testamentary trust in the will, including a description of the property, and and address of the trustee, and the name and address of each beneficiary;
the name and address of each attorney who prepared the will and codicils to the will; and
the present location of the will and each codicil and amendment, and attach a copy of your last will and each codicil to your answers to these interrogatories.

The question is beyond the scope of legitimate inquiry in this proceeding.

PETITIONER REQUEST NO. 42: If you suffer or have a genuine fear or suffering from any physical or mental impairment or infirmity, state the following;

the nature of the impairment or infirmity;
the name, address, and area of practice of any medical or other professional diagnosing and/or treating the impairment or infirmity;
the date the impairment or infirmity was first diagnosed;
the specific diagnosis of the impairment or infirmity;
any prescribed course(s) of treatment;
any restrictions imposed as a result of the impairment or infirmity; and
the prognosis.

I have a need for extensive dental work which has been postponed due to lack of insurance and high cost. I am also suffering from increased stress experienced during the past year and a half but am not being treated for this ailment. Friends notice that my health has deteriorated during this period of prolonged legal problems. I may also be suffering from the lingering effects of mumps contracted during a visit to China in 2010.

Dated 3/14/2012 and signed by petitioner’s attorney

 

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(18) Petitioner’s Request for Production of Documents (March 4, 2012) See divorcebook.html, chapter 25.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Rose Fen Mack
Petitioner PETITIONER’S NOTICE OF MOTION and AND MOTION

Chester Arthur Mack, Junior
Respondent Presiding judicial officer: Susan Raleigh

_________________________________________________________________

TO: THE ABOVE NAMED RESPONDENT, Chester Arthur Mack, JR., 1702 GLENWOOD AVENUE, MINNEAPOLIS, MN 55405

YOU ARE HEREBY REQUESTED, pursuant to Minn. R. Civ. P. 26 and 34, to produce and copy to The Kang Ming Law Office and her agents, as attorney, herein, to inspect the following documents. You further have an obligation to continually produce updated information regarding any relevant information below.

REQUEST NO. 1: Complete copies of all documents that support the answers in the interrogatories.

REQUEST NO. 2: Copies of documents to support that any property that is considered non-marital.

REQUEST NO. 3: Certified copy of your will, which was in effect, or you believed to be in effect in 2009, and a will that is in effect today.

REQUEST NO. 4: Complete copies of all personal federal and state income tax returned signed by you, including all schedules and forms attached thereto, for 2006 through the current tax year and the documents necessary to prepare the tax returns.

REQUEST NO. 5: All documents that detail or reflect the gross amount of rent received, including, but not limited to:
Receipts given to the client;
Accounting or record keeping materials; and
The meta data to any documents created electronically.

REQUEST NO. 6: All personal financial account records for the period from 2006to the date of your response to this Request for any jointor separate account, and/or account which you have an interest in or can withdraw upon, inlucing but not limited to, checking, savings, credit union, money market, and brokerage firm accounts, used by you, or in which you have or have had any interest at any time during said period, specifically including:
account statements;
cancelled checks;
check registers; and
deposit tickets

REQUEST NO. 7: All documents for the period from 2006 to the date of your response to this Request evidencing any debts that you have incurred, jointly or individually, specifically including:
promissory notes;
invoices;
Bills
checkbook log;
credit card statements; and
other account statements.

REQUEST NO. 8: All documents for the period from 2006 to the date of your response to this Request evidencing any expenses that you have paid or currently pay, specifically including:
invoices;
Bills;
checkbook logs;
credit card statements;
cancelled checks;
bank statements; and
other account statements.

REQUEST NO. 9: Any and all copies of documents supporting any transfer of money worth over $100.00 including documents supporting loans.

REQUEST NO. 10: A copy of supporting documents that you used to determine whether or not to make a loan or gift to any person or entity.
Supporting documents used to support your estimates of the value of both real and personal property.

REQUEST NO. 11: Supporting documents used to support your estimates of the value of both real and personal property.

REQUEST NO. 12: A copy of all brokerage accounts prior to marriage to the current date.

REQUEST NO. 13: All pleadings relating to any litigation or Court proceedings in which you are involved, other than this proceeding and in this pleading.

REQUEST NO. 14: Copies of all expert reports pertaining to any issue in this proceeding and all documents, records, notes, and files that served as a basis for the expert’s opinion.

REQUEST NO. 15: Copies of all exhibits that you intend to offer at trial.

REQUEST NO. 16: Any written communications to Joe Nelson regarding finances in the last three years.

REQUEST NO. 17: Any written communications to Joyce Johnson regarding finances in the last three years.

REQUEST NO. 18: Any written communications to a relative of Joyce Johnson regarding finances in the last three years.

REQUEST NO. 19: All documents that evidence your inability to obtain or maintain income, whether the end result is a profitable or not.

REQUEST NO. 20: All documents used to assist you in answering the interrogatories.

REQUEST NO. 21: All documents relevant to this dissolution proceeding.

Note: No replies from Respondent are given here because Petitioner’s attorney did not comply with the court rules regarding discovery, which required her to come to Respondent’s office to identify the desired documents and make photocopies at her expense. This attorney’s “order” improperly required the Respondent to make the photocopies and deliver them to her. Petitioner’s attorney later argued that she would not come to Respondent’s office because was afraid of her personal safety. After all, he was a self-confessed domestic abuser. The judge presiding at the Discovery Conference told her to bring an escort.

Regarding interrogatories, Rule 33.01(a) of the Minnesota Rules of Civil Procedure states: “No party may serve more than a total of 50 interrogatories upon any other party unless permitted to do so by the court upon motion, notice, and a showing of good cause. In computing the total number of interrogatories each subdivision of separate questions shall be counted as an interrogatory.” There were 42 questions in Ms. Kang Ming’s set of interrogatories and, by my calculation, 188 subdivisions of questions.

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(19) Respondent’s Interrogatories (April 30, 2012) See divorcebook.html, chapter 25.

(Note: The Respondent’s requests are in bold print; the Petitioner’s replies, in regular print.)

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

In Re the Marriage of: Case type: Dissolution without Children

Rose Fen Mack Petitioner INTERROGATORIES
and
Chester Arthur Mack, Jr.
Respondent File No. 27-FA-11-2008
Judicial officer: Susan Raleigh

___________________________________________________________________

TO: THE ABOVE NAMED PETITIONER, Rose Fen Mack, THE Kang Ming LAW OFFICE, 8xxx Wayzata BLVD. SUITE 320, MINNEAPOLIS, MN 55426

YOU WILL PLEASE TAKE NOTICE that the respondent demands Answers under oath by petitioner to the following interrogatories within thirty (30) days of service thereof, pursuant to Rules 26 and 33 of the Minnesota Rules of Civil Procedure.

INTERROGATORIES

RESPONDENT’S REQUEST NO. 1: Please list the assets that you owned in China on January 28, 2000, and their market values at that time. I owned two condominiums, which I call “big apartment” and “small apartment”. I do not know what the values were of the condominiums, but Chester did not contribute to anything related to my condos in China, nor did he give me any money to improve the value of the condos.

RESPONDENT’S REQUEST NO. 2: Please list the debts that you owed in China at the time of marriage on January 28, 2000, and the amount of those debts. I did not possess any debts prior to the marriage.

RESPONDENT’S REQUEST NO. 3: Please disclose your employment position and monthly income at the time of marriage on January 28, 2000. Objection. Relevance.

RESPONDENT’S REQUEST NO. 4: Please list the assets that you own now, either in China or the United States, including stocks, bonds, or other financial instruments, and their current market values. I own one condominium in China worth $200,000 now (value depreciated since the Initial Case Management Conference) and a retirement account (401k) worth $5,000 from when I worked at Target in the United States in the clothing department.

RESPONDENT’S REQUEST NO. 5: Please list the debts that you owe now, either in China or the United States. I owe my friend Ms. Lu $6,000 to borrow money for medical care and I owe my daughter $12,000 for attorney’s fees and court costs. My daughter works 3 jobs and used her graduation presents from other relatives to assist me with my debts.

RESPONDENT’S REQUEST NO. 6: What assets, if any, have you acquired since you were married on January 28, 2000? If so, what? Chester and I purchased a home together. We have spent some of our income on improving our rental properties. I have bought used car worth $800-$1,000 and some misc. clothes and items.

RESPONDENT’S REQUEST NO. 7: Please indicate any savings accounts or checking accounts that you have had within the past three years, either by yourself or jointly with your daughter, Violet, including the name of the banking institution, address, account number, and current cash balance. In the last two years, Violet owns an account and gives me money from it, but I do not put money in it. She does not give me gifts but loans me some money to help me since Chester reduced my income to $400 per month.

RESPONDENT’S REQUEST NO. 8: What was the sales price and date of sale of the “small apartment” in Beijing sold in the summer of 2010? Why did you sell this apartment? Did you inform your husband of your plans to sell the apartment before the sale took place or have you shown him any documents related to the sale? I sold the “small apartment” for 710,000 RMB because Chester told me to in September 2010 to help Violet with the purchase of her town house. I thought Chester was going to help us with the down payment of Violet’s home because that is what parents do for their only child in china. He received two large life insurance policies in 2010, but gave it all to Joyce Johnson, Joe Nelson, and Lena Nelson after Chester’s numerous affairs.

RESPONDENT’S REQUEST NO. 9: When did you purchase or acquire the “small apartment” sold in the summer of 2010 and what was the purchase price? The condominium was purchased from the government in 1998 for 10,000 RMB, but this price was only available for single parents. If I was not a single parent, the property would not be available to me. Thus, Violet and I owned the apartment, jointly.

RESPONDENT’S REQUEST NO. 10: Please account for the proceeds from the sale of the small apartment in 2010. For what purpose was the money spent? How much, if any, of this money is left? Objection, Duplicative. No money is left.

RESPONDENT’S REQUEST NO. 11: Please account for the earnings and disposition of the money that you earned at Target between 2003 and 2006? For what purpose was this money spent? Marital expenses, nominal amounts

RESPONDENT’S REQUEST NO. 12: How much money did you contribute toward Violet’s college expenses at St. Olaf or other of her expenses? Objection. Duplicative

RESPONDENT’S REQUEST NO. 13: Approximately what percentage of the time did you live in China since your marriage in January 2000 and how much of the time did you live in the United States? The most amount of time I spent in China was for medical treatment when Chester refused to buy me health insurance and spent all of his money on mistress, Joyce Johnson. I was in China then. I would say I have spent 90-95% of my time in the United States; only a fraction of that time was time away from Chester. Chester should know that’s when he had the affair, or at least I hope he wasn’t having the affair when I was in the same town as him.

RESPONDENT’S REQUEST NO. 14: What trips or tours did you take in Asia or the United States by yourself, unaccompanied by your husband, when were these trips taken and how long did they last? One trip to Guangxi and Vietnam and one trip to Korea, but no more trips than Chester took without me.

RESPONDENT’S REQUEST NO. 15: What is the estimated market value of your “big apartment” in Beijing? Do you have any plans to sell it? My real property in China is worth approx. $200,000 and I don’t know what I plan to do with this property. I bought my apartment for 300,000 RMB in 1996.

RESPONDENT’S REQUEST NO. 16: When and for how much money did you buy your big apartment? I bought my apartment for 300,000 RMB in 1996.

RESPONDENT’S REQUEST NO. 17: Do you not own or have an interest in another “small apartment” in Beijing? If so, what is its current value? I do not have an interest in another small apartment in Beijing. Chester must be confused.

RESPONDENT’S REQUEST NO. 18: Please indicate your health-care expenditures by year during the last six years. How much money was spent and for what purpose? What is your current state of health? Most of my health care has been paid off because of my sacrifice of traveling to China. I have one $6,000 loan for my lung operation that is outstanding.

RESPONDENT’S REQUEST NO. 19: During 2009 or 2010 or at other times, did you ever decide not to sleep in bed with your husband or have sexual relations with him because you believed that he might have AIDS? Objection. Relevance.

RESPONDENT’S REQUEST NO. 20: If you believe that you contributed labor which increased the value of any real estate owned by you or your husband in Minneapolis, please indicate the particular work that you did, including hours and estimated dollar value. Yes, I helped for all of Chester’s properties. I should have earned slightly above the federal minimum wage for the hours put in and there were a lot of improvements done to the apartments during our marriage, which used marital funds. I have answered this question many times. However, there was a new metal roof put into Milford in 2010 and I helped out a lot with getting the driveway ready, cleaning the attic, and helping Chester’s Dad with the home when he lived there. I would from the years I put in at least 300 hours worth of labor into Milford.

RESPONDENT’S REQUEST NO. 21: Did you take an active role in your husband’s rental-property business? If so, what work did you do specifically in this business? Please see answer to question 20.

RESPONDENT’S REQUEST NO. 22: What funds, if any, did you contribute toward your and your husband’s household expenses during the years of marriage? I contributed everything I had including some of my social security from China. I also worked a lot harder in the home than Chester. Chester did almost nothing in the home. Chester is extremely messy and has poor hygene.

RESPONDENT’S REQUEST NO. 23: How much have your attorney fees been in this divorce? Who paid those Bills? Do you have any unpaid legal Bills and, if so, what arrangements have been made to satisfy the obligation? Objection. Relevance. Attorney-Client Privilege.

RESPONDENT’S REQUEST NO. 24: Did you make a false complaint of assault against your husband to the Minneapolis police on January 23, 2012, and what advice, if any, did your attorney give in this matter? Objection. Relevancy. Assumes facts not in evidence. Speculation. Lacks Personal Knowledge. Hearsay. Attorney/Client Privilege.

RESPONDENT’S REQUEST NO. 25: Do you or your attorney have any papers, documents, or items such as cameras belonging to your husband which were taken from his office or living quarters without his permission and which have not yet been returned to him? Objection. Relevancy. Argumentative. Assumes fact not in evidence. Compound Question. Vague.

RESPONDENT’S REQUEST NO. 26: How many bedrooms are in your daughter Violet’s town house in Herndon, Virginia, and do you have use of any of them without paying rent? Objection. Relevance.

RESPONDENT’S REQUEST NO. 27: Do you have use of Violet’s credit card without the need to reimburse her and how much money have you been charging each month in the past half year? Objection. Relevancy.

RESPONDENT’S REQUEST NO. 28: Have you or Violet received any funds or financial assistance from Violet’s biological father, paternal grandfather, or other of her relatives during the period of marriage to your current husband? If so, when and how much? Objection. Relevancy. Assumes facts not in evidence.

RESPONDENT’S REQUEST NO. 29: Please state what retirement, health, or other benefits you have or are entitled to receive from the Chinese government. Objection. Relevancy. I receive about $280-300 per month in retirement.

RESPONDENT’S REQUEST NO. 30: What exhibits do you intend to introduce at trial including a description of their nature and purpose? not answered (omitted from petitioner’s response)

RESPONDENT’S REQUEST NO. 31: What witnesses or expert testimony do you intend to introduce at trial? not answered (omitted from petitioner’s response)

 

Dated: ______________________ ________________________________
Chester Mack
1702 Glenwood Avenue
Minneapolis, MN 55405
Phone: (612) 374-xxxx

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(20) Respondent’s Motion for Production of Documents (March 18, 2012) See divorcebook.html, chapter 25.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

In Re the Marriage of: Case type: Dissolution without Children

Rose Fen Mack Petitioner PRODUCTION OF DOCUMENTS
and
Chester Arthur Mack, Jr.
Respondent File No. 27-FA-11-2008
Judicial officer: Susan Raleigh

___________________________________________________________________

TO: THE ABOVE NAMED PETITIONER, Rose Fen Mack, THE Kang Ming LAW OFFICE, 8xxx Wayzata BLVD. SUITE 320, MINNEAPOLIS, MN 55426

YOU ARE HEREBY REQUESTED, pursuant to Minn. R. Civ. P. 26 and 34, to produce and copy to Chester Mack , representing himself, to inspect the following documents and make them available for photocopying.

 

RESPONDENT’S REQUEST NO. 1: your current U.S. passport and previous Chinese passport Objection. Relevancy. Chester has taken me to obtain funds from the social security office by lying and I did not realize it. I do not know what he was doing or plans to do with this information. However, I destroyed my expired Chinese passports. I did not know that Chester and i were getting divorced at the time or that he would ever request them for this divorce proceeding.

RESPONDENT’S REQUEST NO. 2: current statement of any checking or savings account that you have or, if none, of an account most recently had Please see attached.

RESPONDENT’S REQUEST NO. 3: Bills for medical services received in China or the United States or evidence of arrangements made to pay future medical bills Objection. Unavailable and unduly burdensome. Please see attached.

RESPONDENT’S REQUEST NO. 4: documents to support the sale of an apartment in Beijing in the summer of 2010 including statement of monies received, the deposit of this money with banking institutions, and its payment for various purposes Objection. Relevancy. Please see attached of what I could get in the short amount of time.

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(21) Respondent’s Motion for a Discovery Conference (April 6, 2012) See divorcebook.html, chapter 23.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children
_____________________________________________________________________
In Re the Marriage of:

Rose Fen Mack

MOTION TO REQUEST A DISCOVERY CONFERENCE


and
Chester Arthur Mack, Jr.
Respondent
File No. 27-FA-11-2008
Presiding Judicial Officer: Susan Raleigh
________________________________________________________________

TO: Rose Fen Mack, The Kang Ming Law Firm, 8xxx Wayzata Boulevard, Suite 320, Golden Valley, MN 55426

PLEASE TAKE NOTICE that the undersigned is presenting a motion to the court to hold a discovery conference involving the two parties and/or their attorneys.

MOTIONS

The respondent, Chester Mack , moves the court for an order as follows:

To hold a discovery conference to set guidelines for reasonable discovery requests and, in particular, clarify whether it is necessary to do formal appraisals on all my real-estate properties and on my wife’s properties in China in light of Rule 26.02(a)(3). I will propose an alternative method of establishing property value which is objective and accurate and more cost effective. I also plan to seek a review of the petitioner’s Interrogatories with respect to the maximum number of questions permitted under Rule 33.01 as well as an agreement on the manner of satisfying the petitioner’s request for Production of Documents. I will seek a statement of intent from the petitioner as to satisfying my own discovery requests. The object will be to focus discovery upon obtaining evidence most relevant to a property settlement. I will present evidence of having attempted to reach an agreement with the opposing attorney prior to bringing this motion.

 

Dated: _________________ ______________________________
Chester Mack , Respondent

Sworn and affirmed before me this

______6_ day of April, 2012

notary public

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

(H) PREPARATIONS FOR TRIAL AND TRIAL DECISION

(22) Partial Settlement Agreement (May 1, 2012) See divorcebook.html, chapter 26.

1. Husband is awarded the following nonmarital property: 3 Wunderlix Celluloid prints, value not determined, Port Wing Wisconsin property and land

2. Wife is awarded her nonmarital property as follows: Condo in Beijing China

3. Husband is awarded the following real estate and shall pay all encumbrances: 1702 Glenwood Avenue (four-plex), 1708 Glenwood Avenue (nine-unit). The characterization of the debt is not determined.

4. Husband is awarded the Mercury Tracer.

5. The parties agree that the value of 1708 Glenwood is $280,000.

6. The parties agree that the value of 1715 Glenwood and 1719 Glenwood together is $110,000. They are both entirely marital. The encumbrance against 1715 Glenwood is $173,000. The characterization of the debt is not determined.

7. The parties agree that the Milford house and parking land are valued at $280,000. The does not include the large acreage lot. Wife is not making any claim on the large acreage which is from his Father’s estate and has not been distributed.

8. Wife’s 401(k) is valued at $5,000.

9. Wife will be responsible for any tax liabilities or debts related to the sale of her
Beijing apartment in 2010. (This provision was crossed off and initialed by both parties.)

10. The parties agree that the Wife’s medical bills of $6,000 are a joint debt.

We agree to the foregoing and understand these values and/or terms will be incorporated into their Judgement and Decree of dissolution.”

Negotiated by Judge Washington, this paper was signed both by both parties.

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(23) Petitioner’s Exhibit List (May 7, 2012) See divorcebook.html, chapter 27.

At the trial of this matter in Hennepin County District Court, Petitioner will submit the following in evidence:

Exhibit Description

1 Proceeds of small apartment sold in China
2 Chinese bank records sale of property in China
3 Chinese Bank record containing ICMC date
4 Wells Faro account (with Violet Mack ) containing ICMC date
5 Rose Mack ’s living expenses
6 Attorney’s fees
7 Sale proposal summaries for nine-unit apartment

8 Chester Mack ’s email to Violet Mack re: House contract with two attachments a Virginia jurisdictional addendum and regional sales contract

9 Violet Mack ’s email to Chester Mack re Chester’s travel information to Virginia showing receipt of Chester Mack ’s travel on October 16, 2010

10 Rose Mack ’s inventory list
11 Chester Mack checkbook logs
12 Loans from Chester Mack to Joyce Johnson
13 Loans from Chester Mack to Joe Nelson
14 2006 federal personal income tax return
15 2007 federal personal income tax return
16 2008 federal personal income tax return
17 2009 federal personal income tax return
18 2010 federal personal income tax return
19 Chester Mack admission email $89,000
20 1715 Glenwood expert report
21 1708 Glenwood expert report
22 1702 Glenwood expert report
23 100 Sawkill Avenue expert report including addendum correcting the date of April 15, 2001

 

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(24) Respondent’s Documents to be presented at trial (May 7, 2012) See divorcebook.html, chapter 27.

 

GENERAL

Exhibit 1 Settlement Agreement based on changes in marital property, 2000-2011
Exhibit 2 Assets and liabilities in 2000 and 2011
Exhibit 3 Calculation of housing values in 2000 and 2011

DEBTS
Exhibit 4 Summary of Chester Mack ’s credit accounts as compiled by PrivacyGuard
Balances on January 28, 2000:
Uni-statements from US Bank checking accounts around 1/28/00
Exhibit 5 Account 1-731-0328-8796 12/23/99 to 1/25/00
Exhibit 6 Account 1-731-0328-8796 1/26/00 to 2/23/00
Exhibit 7 Account 1-731-0265-2398 12/15/99 to 1/14/00

Balances on April 15, 2011:

Exhibit 8 NationStar mortgage loan statement 4/5/11 to 5/1/11
Exhibit 9 US Bank mortgage loan statement due date 5/10/11
Exhibit 10 VISA - First Bank Omaha credit card statement due date 4/3/11
Exhibit 11 Chase credit card statement due date 5/21/11
Exhibit 12 Advanta credit card statement due date 5/6/11
Exhibit 13 US Bank credit line ending in 2961 4/2/11 to 5/2/11
Exhibit 14 US Bank credit line ending in 0914 3/30/11 to 4/19/11
Exhibit 15 US Bank checking account reserve line 3/18/11 to 4/19/11
Exhibit 16 Citibusiness credit card statement due date 4/14/11
Exhibit 17 Menard’s credit card statement 3/25/11 to 5/22/11

FINANCIAL ASSETS
Exhibit 18 List of stocks purchased by Chester Mack 1985 to 2003
Exhibit 19 List of stocks sold by Chester Mack 1985 to 2007
Exhibit 20 Copy of stock certificate for 2143 shares of First Union Corporation stock
Exhibit 20 Copy of stock certificate for 2143 shares of First Union Corporation stock
Exhibit 21 Letter dated 11/17/99 showing how the First Union Bank stock was acquired
Exhibit 22 Announcement that First Union Bank is now part of Wells Fargo
Exhibit 23 Merrill Lynch slip for purchase of 525 shares of Latin Equity Fund on 5/22/1996
Exhibit 24 Announcement in St. Paul Business Journal on 6/24/04 that BMC went bankrupt
Exhibit 25 Three purchase confirmation slips for 800 shares of First Bank System (US Bank)
Exhibit 26 Purchase slip for 500 shares of Control Data Corporation (Ceridian)
Exhibit 27 Dayton-Hudson (Target) stock certificate
Exhibit 28 Pacific Gas & Electric stock certificate
Exhibit 29 The Germany Fund stock certificate
Exhibit 30 Arbitron stock certificate
Exhibit 31 Ceridian (Control Data) stock certificate
Exhibit 32 US Bancorp stock certificate
Exhibit 33 Recom Securities sales slip for 938 shares of US Bancorp stock on 11/27/02
Exhibit 34 Recom Securities sales slip for 400 shares of Ceridian stock on 5/26/06
US Bank uni-statement 1-731-0328-8796 1/26/00 to 2/23/00 (with debt exhibits)
Exhibit 35 AXA Equitable insurance confirmation certificate and letter 2/16/00
Exhibit 36 Schedule 6252 (installment sales income), 2002 and 2003 federal income tax returns
Exhibit 37 Northwestern Mutual Payment Plan Confirmation Statement 8/1/2005
Confirmation of stock price on 1/28/00 in National Daily Stock Price Record, first quarter of 2000 (at downtown Minneapolis library):
Exhibit 38 First Union Corporation (p. 224)
Exhibit 39 Latin American Equity Fund (p. 330)
Exhibit 40 First Bankcorp (p. 221)
Exhibit 41 Germany Fund (p. 250)
Exhibit 42 Pacific Gas & Electric (p. 108)
Exhibit 43 Target Corporation (p. 556)
Exhibit 44 Gannett Corp. (p. 241)
Exhibit 45 Control Data Corp. (p. 111)
Exhibit 46 US Bank checking account xxxxxxxx2032 4/1/11 to 4/29/11
Exhibit 47 AXA Equitable account statement 5/1/11 to 5/21/11
Exhibit 48 Wells Fargo checking account for Thistlerose Publications 6/7/11
Exhibit 49 Wells Fargo Corp. Direct Registration Account Statement 12/28/11
Exhibit 50 Gannett Corp. Direct Reinvestment Plan Account Statement 7/2/11
Exhibit 51 Recom Securities purchase slip Xcel Energy 8/2/02
Marketwatch.com historical stock quotations for 4/15/11:
Exhibit 52 Wells Fargo Corp. (for 4/15/11)
Exhibit 53 US Bancorp (for 4/15/11)
Exhibit 54 European Equity Fund (replaced Germany Fund in 2005) for 4/15/11
Exhibit 55 Pacific Gas & Electric Corp. (for 4/15/11)
Exhibit 56 Target Corp. (for 4/15/11)
Exhibit 57 Gannett Corp. (for 4/15/11)
Exhibit 58 Arbitron (for 4/15/11)
Exhibit 59 Xcel Energy (for 4/15/11)

Land Sale: 1701 Glenwood Avenue
See Schedule 6252 for 2002 and 2003 (above)
Exhibit 60 THE REALTOR (publication of Minneapolis Area Association of Realtors), March 2001, p. 9
Exhibit 61 2005 Residential Activity Report Feb. 2006, p. 8 (Minneapolis Area Association of Realtors)

REAL-ESTATE ASSETS
Exhibit 62 Judge Washington’s real-estate values stipulation sheet
Exhibit 63 Rose Mack ’s balance sheet presented on 5/1/12 (partial)
Exhibit 64 Print-out of graph showing Chinese housing prices between 2004 and 2011, e-Homeday, reported December 9, 2011, globalpropertyguide.com
Exhibit 65 Trulia.com 4/22/2012, Milford (PA) market trends, disclosing the average sales price of a house in Milford and Notes of price levels on a graph disclosing the median sales price of homes sold in Pennsylvania between July 2002 and April 2011
Property valuation history, City of Minneapolis PropertyInfo on city’s website:
Exhibit 66 for 1702 Glenwood Avenue
Exhibit 67 for 1708 Glenwood Avenue
Exhibit 68 for 1715 Glenwood Avenue.
Exhibit 69 “Small Residential Income Property Appraisal Report” prepared by appraiser Byron E. Miller on 4/9/2010 with respect to the duplex at 1715 Glenwood Avenue.
Exhibit 70 Average sales prices of Minneapolis-area homes, Historical Average Sales Price (graph), January 2000 to January 2010, monthly indicators issued by the Minneapolis Area Association of Realtors
Exhibit 71 Average sales prices of Minneapolis-area homes, Historical Average Sales Price (bar graph), April 2010 and April 2011, monthly indicators issued by the Minneapolis Area Association of Realtors
Exhibit 72 Quit claim deed for Wisconsin land to Chester Mack signed by Joyce Johnson 6/22/2011

ASSETS TRANSFERRED TO Rose & Violet MackAND TO Joyce Johnson
Bayfield County Wisconsin property record:
Exhibit 73 20 acres of land owned by Chester Mack
Exhibit 74 20 acres of land owned by Kenneth & Ingeburg Johnson (deeded 4/1/2011)

Exhibit 75 Money given by Chester Mack to Rose & Violet Mack , 2002-2006
Exhibit 76 Money given by Chester Mack to Rose & Violet Mack , 2007
Exhibit 77 Money given by Chester Mack to Rose & Violet Mack , 2008
Exhibit 78 Money given by Chester Mack to Rose & Violet Mack , 2009
Exhibit 79 Money given by Chester Mack to Rose & Violet Mack , 2010
Exhibit 80 Money given by Chester Mack to Rose & Violet Mack , 2011
Exhibit 81 Summary by year of money given to Rose & Violet Mack , 2002 to 2011
Exhibit 82 Rose Mack ’s monthly charges to Chester Mack ’s credit card in 2012
Exhibit 83 Possible dissipation of assets, 2010 to 2012, involving checking account
Exhibit 84 Possible dissipation of assets, 2010 to 2012, involving Citibusiness credit card
Exhibit 85 Example of a check forged by Joyce Johnson
Exhibit 86 Letter written by US Bank officer in connection with a fraud claim Jan. 2011
Exhibit 87 Letter written by US Bank officer in connection with a fraud claim May 15. 2011

DEEDS TO REAL ESTATE
Exhibit 88 Warranty deed for land in Bayfield County, Wisconsin, dated June 3, 1986
Exhibit 89 Certificate of title to house and land at 1702 Glenwood Avenue, Minneapolis, dated March 30, 1992
Exhibit 90 Deed to apartment building and land at 1708 Glenwood Avenue dated November 18, 1997
Exhibit 91 Deed to house and land in Pike Co., Milford, Pennsylvania, dated December 29, 1994 and January 3, 1995
Exhibit 92 Deed to house and land at 1715 Glenwood Avenue dated January 16, 2004
Exhibit 93 Deed to land at 1719 Glenwood Avenue.

DEPRECIATION SCHEDULE AND MORTGAGE DOCUMENTS
Exhibit 94 Depreciation schedule 2002 to 2006
Exhibit 95 Mortgage on 1702 Glenwood Ave. with Wells Fargo for $103,000 on May 8, 2003
Exhibit 96 Second mortgage on 1702 Glenwood Ave. with Citibank for $104,124 on Nov. 21, 2006; notice that another debt to Wells Fargo for $48,836 and two debts to US Bank totaling $55,288 are paid off by this loan. The Citibank loan was later paid off by the mortgage on 1715 Glenwood Avenue.
Exhibit 97 Letter from Wells Fargo on December 22, 2010, stating that the original mortgage on 1702 Glenwood Ave. was paid off
Exhibit 98 Mortgage with US Bank dated December 10, 2010 for $86,300; notice that $70,607 went toward paying off the Wells Fargo mortgage and $15,875.44 toward paying off two US Bank credit lines

OTHER EXHIBITS

Exhibit 99 Letter from Minneapolis Assistant City Attorney, Jennifer A. Saunders, dismissing the charge of Domestic Assault (27CR122031) against Chester Mackand the Notice of Dismissal filed with the court
Exhibit 100 Minneapolis City Attorney Domestic Assault Pretrial Victim Input Form, information given by Rose Mack on 1/31/12
Exhibit 101 Hennepin County Pre-Trial Evaluation Form, information given by Rose Mack on 1/23/12
Exhibit 102 Copy of a condemnation placard posted on the door of 1702 Glenwood Avenue by Minneapolis city inspectors on March 3, 2011
Exhibit 103 List of work orders issued in inspection of 1702 Glenwood home done 1/28/11
Exhibit 104 Federal tax return of Chester and Rose Mack , all schedules, 2009
Exhibit 105 Federal tax return of Chester and Rose Mack , all schedules, 2010
Exhibit 106 Petitioner’s Prehearing Statement in April 2011, pages 1 and 3, Exhibit 9B
Exhibit 107 E-mails from attorney Frederick Smith to client Chester Mack on April 7, 2011, April 14, 2011, April 15, 2011 (2), April 20, 2011, and April 22, 2011, disclosing previous emails from attorney Su-Mei Kang Ming
Exhibit 108 Attorney Kang Ming request for production of documents March 14, 2012
Exhibit 109 Objections raised by Kang Ming on April 17, 2012 in response to my interrogatories
Exhibit 110 Number of questions or sub-questions in Kang Ming interrogatories March 14, 2012
Exhibit 111 Emails to Chester Mack from Su-Mei Kang Ming dated April 17, 2012 and May 2, 2012
Exhibit 112 Addendum to the Lease, Housing Assistance Payments Contract between Joe Nelson and Chester Mack signed on April 24, 2008
Exhibit 113 E-mail To Chester Mack from fertility doctor Liu Ying on September 8, 2002 and Chester Mack ’s letter in response
Exhibit 114 Check written by Rose Mack to Immigration and Naturalization Service on 5/5/2003
Exhibit 115 “Great Team Hero” award given to Rose Mack by Target Corp. in September 2004
Exhibit 116 Rose Mack ’s citizenship certificate
Exhibit 117 Letters dated 8/22/2011 notifying Rose Mack that she was accepted by Assured Access for medical care at a reduced fee
Exhibit 118 Rose Mack responses to my interrogatories delivered at 5 p.m. on April 30, 2012 (Attorney Kang Ming already has a copy.)
Exhibit 119 Lease with Linda Davis for tenancy at 100 Sawkill Avenue, Milford, PA
Exhibit 120 Letter written by Linda Davis to Chester Mack dated 3/30/2011
Exhibit 121 Deposit slip into Rose Mack ’s Wells Fargo account in Herndon, VA
Exhibit 122 Notarized letter from Linda Davis
Exhibit 123 Notarized letter from a former tenant and caretaker in Minneapolis, Keith Baker
Exhibit 124 Letter to the court from Kang Ming claiming that Chester Mack had the metal roof on the Milford house replaced in 2010
Exhibit 125 Chester Mack debts on May 4, 2012: monthly interest expense and retirement income compared
Exhibit 126 Page from Chester Mack ’s most recent checking account that shows Social Security and state retirement deposits
Exhibit 127 Summary of Chester Mack ’s accounts at US Bank on May 4, 2012, that shows his current assets and debts
Exhibit 128 NationStar mortgage loan statement dated 3/1/12
Exhibit 129 VISA Omaha credit card statement dated 4/3/12
Exhibit 130 Chase credit card statement dated 3/12/12
Exhibit 131 Advanta credit card statement dated 4/10/12
Exhibit 132 Citibusiness credit card statement dated 5/21/12
Exhibit 133 Menards (HSBC) credit card statement dated 5/14/12
other exhibits in response to new evidence presented at trial

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*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***

(25) The trial-court judge’s decision (July 20, 2012) See divorcebook.html, chapter 34.

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of: Court File No. 27-FA-11-XXXX

Rose Fen Mack
Petitioner

and

Chester Arthur Mack(2)

Respondent

FINDINGS OF FACT, and CONCLUSIONS OF LAW


ORDER FOR JUDGMENT, AND JUDGMENT AND DECREE

________________________________________________________________

The above entitled matter came on for trial before the Honorable Stephen F. Jensen at the Hennepin County Family Justice Center, Minneapolis, Minnesota, on May 7th and May 8th, 2012. Petitioner appeared in person and was represented by Su-Mei Kang Ming, Esq. Respondent appeared in person and was pro se. Based upon all of the evidence presented, the exhibits, the specific portions of the record mentioned herein, and the Memorandum attached hereto, the court the following:

FINDINGS OF FACT

1. The parties names, addresses, birth dates and ages are as follows:

Petitioner:
Name: Rose Fen Mack
Previous Name(s): Rose Ying Mack, Ying Min
Address: 1702 Glenwood Avenue, Minneapolis, 55405
Birth date: April 5, 1956

Respondent:
Name: Chester Arthur Mack, Junior
Also known as: Chet Mack, Chester A. Mack
Previous Name(s): None
Address: 1702 Glenwood Avenue, Minneapolis, 55405
Birth date: February 21, 1941

Petitioner is also referred to as Wife and Respondent is also referred to as Husband in this decree. The Social Security numbers of the parties have been filed as confidential information.

2. Petitioner is represented in these proceedings by:

Su-Mei Kang Ming, Esq.
Kang Ming Law Firm
8XXX Wayzata Boulevard, Suite 320,
Golden Valley, MN 55426

Respondent is currently self-represented, but he had counsel at the beginning of these proceedings.

3. Petitioner has resided in Minnesota 180 days prior to commencement of this proceeding, and was a resident of Hennepin County at the time of commencement of this proceeding.

4. The parties were married on January 28, 2000 in the City of Beijing, Country of China, ever since have been and still are married.

5. There has been an irretrievable breakdown of the marriage relationship between the parties. The parties have been separated since February 18, 2011.

6. No separate proceeding for dissolution or legal separation is pending in any court in this state or elsewhere.

7. Neither party has been a member of the armed forces of the United States and has no been since the pendency of this proceeding. Accordingly, the Service Members Civil Relief Act of 2003 does not apply.

8. There are no children born of this marriage.

9. Petitioner is not now pregnant.

10. The parties are subject to a Domestic Abuse No Contact Order with provisions allowing contact, Hennepin County Court File 27-CR-11-XXXX.

11. The parties’ financial circumstances are set forth in the attached Memorandum.

12. The parties’ real estate and investment assets are set forth in detail in the attached Memorandum.

13. The legal descriptions of the parties’ real estate interests are as follows, along with encumbrances thereon:

a. The four-plex at 1702 Glenwood Avenue, Minneapolis, MN 55405, Hennepin
County, State of Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to
Minneapolis, Minnesota.

There is an encumbrance in the approximate amount of $86,300.

b. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin
County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

There is an encumbrance in the approximate amount of $0;

c. The duplex at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of
Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26,
Hennepin County, MN including any part or portion of any street or alley
adjacent to said premises vacated to be vacated;

There is an encumbrance in the approximate amount of $182,000.

d. Two parcels at 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of
Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North
of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County,
except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of
Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26,
Hennepin County, Minnesota.

e. 100 Sawmill Avenue, Milford, Pennsylvania. The legal description of this
property has not been provided to the Court

f. Property located in Orienta Township, County of Bayfield, near Port Wing Wisconsin.
There is a dispute between the parties as to whether this land consists of 20 or 40
acres. A log cabin is also located on this property. The only legal description presented
to the court is as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

g. Condominium in Beijing, China at Hualong Residence Community, Tongzhou
District, Building 48, Apt 552. No legal description was provided to the Court.

14. The parties have an interest in Petitioner’s 401k, account (number unknown) valued at $5,000 as of May 8, 2012.

15. A 1995 Mercury is titled in Respondent’s name. The fair market value is unknown, but nominal for purposes of an equitable property division.

16. The parties have various bank accounts with nominal value. Petitioner’s Wells Fargo checking, $100 as of April 15, 2011; Petitioner’s Chinese Bank Accounts, $400 as of April 15, 2011; Respondent’s Wells Fargo checking, $1,000 as of June 7, 2011; Joint Respondent’s banking account through US Bank, account ending in 3556, $1,200 as of April 18, 2011; and Joint Respondent’s banking account through US Bank, account ending in 2032, $500 as of April 29, 2011.

17. The parties own miscellaneous personal property, household goods and furnishings, furniture, and appliances of nominal value that are not at issue herein.

18. Prior to trial, the parties disagreed regarding the marital debts in this matter. In order to clarify these issues, the court used Petitioner’s Pre-hearing statement balance sheet to facilitate discussion and achieve agreements regarding the debts. Using this process, the parties arrived at the following agreements: The Advanta debt is $2,630.50; the Citybank Business card debt is $12,001.85 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116); and the debt on the Menard’s credit card ending in account # ending in 5093 is $1,893.52 (Exhibit 133). Although disputed, Respondent agreed to be responsible for the Citybank Business card, account # ending in 5466. There was no agreement regarding the responsibility for the First national bank of Omaha Visa charges (Exhibit 200) and the Menard’s credit card debt in account #5093.

19. Prior to trial the parties stipulated that Husband would be awarded the Wunderlix Celluloid Prints, the Port Wing, WI, improvements and land, the Mercury Tracer, 1702 Glenwood Avenue (4-plex), and 1708 Glenwood Avenue (nine-unit), and pay all encumbrances on these Glenwood properties; and that Wife would be awarded the condo located in Beijing, China. The parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of 1715 Glenwood Avenue is $173,000 (meaning no equity). The parties agreed that these two Glenwood properties were entirely marital. The also agreed that value of the Milford, Pennsylvania improvements and parking is $280,000, which includes the large adjacent acreage lot. Wife is not making any marital claim as to the large acreage from Husband’s father’s estate and it has not Yet been distributed. The parties agree that the Petitioner’s 401k should be valued at $5,000, and that Wife’s medical bills totaling $6,000 as of May 1, 2012 are a joint marital debt.

20. Petitioner has a non-joint daughter, Violet Mack, who has reached the age of majority.

21. Petitioner has health insurance available to her through the People’s Republic of China, Respondent receives Medicare. Neither party carries separate health or dental insurance plans.

22. Neither party receives any form of public assistance as defined by Minn. Stat. section 256.741.

23. Neither party is seeking a name change.

CONCLUSIONS OF LAW

I. DISSOLUTION OF MARRIAGE. The marriage existing between the parties is hereby dissolved.

II. SPOUSAL MAINTENANCE

Commencing August 1, 2012, as and for permanent spousal maintenance, Respondent shall pay to Petitioner the sum of $500.00 per month in two equal installments on the first and fifteen days of each month, until the earlier of the following events:

(a) Death of Petitioner

(b) Death of Respondent

(c) Remarriage of Petitioner

(d) Further order of the Court

It is intended that this maintenance payable to Petitioner shall be included in Petitioner’s
gross income, pursuant to Section 71 of the Internal Revenue Code, and shall be
deductible by Respondent, pursuant to Section 215 of the Internal Revenue Code. The
Court retains jurisdiction to enforce Respondent’s obligation to pay maintenance to
Petitioner.

III. MEDICAL, HOSPITALIZATION AND DENTAL INSURANCE. Neither party is obligated to provide medical, hospital or dental insurance for the other.

IV. MARITAL AND NONMARITAL PROPERTY AWARDED TO PETITIONER:

“1. The Beijing, China, condominium at Hualong Residence Community, Tongzhou
District, Building 48, Apt. 552.

2. All bank accounts, investment accounts, and retirement accounts in her name, including but not limited to her Wells Fargo and Chinese Bank Accounts;

3. The parties joint US Bank accounts ending in numbers 3536 and 2032 at the
values set forth above in Finding 16.

4. All personal items in her possession;

5. Her 401k;

6. The parties Qwest/Century Link stock;

7. $50,000 which shall be paid by Respondent in successive equal monthly installments
of $10,000 each (with no interest thereon) commencing October 1, 2012. As an
alternative, Petitioner may elect instead to have assigned to her the loans owed by
Joyce Johnson, Joe Nelson, and Elizabeth Mora. If chooses the loans instead of the
$50,000 cash, she shall advise the court within 30 days after the Decree is entered.

V. MARITAL AND NONMARITAL PROPERTY AWARDED TO RESPONDENT:

1. Wunderlix Celluloid Prints;

2. The Port Wing, WI, improvements and land legally described as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

3. The Mercury Tracer;

4. All bank accounts, investment accounts, and retirement accounts in his name,
including but not limited to his Wells Fargo checking.

5. The four-plex at 1702 Glenwood Avenue, Minneapolis, MN 55405, Hennepin
County, Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota;

6. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin
County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

7. The improvements and land located at 100 Sawmill Avenue, Milford,
Pennsylvania.

8. 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally
described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26,
Hennepin County, MN including any part or portion of any street or alley
adjacent to said premises vacated;

9. 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally
described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying
North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin
County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that
part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision
No. 26, Hennepin County, Minnesota.

10. The following stocks/ securities: Gannett, Wells Fargo, Wachovia, Arbitron, US
Bank, Target, and Germany Fund/Euro Equity Fund;

The following life insurance policy: AXA Life insurance account (zero balance).

VI. DEBTS ASSIGNED TO RESPONDENT

Respondent shall pay and hold Petitioner harmless from: all encumbrances against
the real estate awarded to him above; the Advanta debt; the debt on the Menard’s credit
card account # ending in in 5093; the Citybank business card, account # ending in 5466; and the debt to First Bank of Omaha.

VII. DEBTS ASSIGNED TO PETITIONER

Petitioner shall pay and hold Respondent harmless from her medical bills.

VIII. ATTORNEYS’ FEES Each party is responsible for their own individual attorneys’ and experts fees and costs incurred in this proceeding.

IX. SERVICE OF A COPY OF JUDGMENT AND DECREE. Service of a copy of this Judgment and Decree may be made on the attorney for the other party, by United States mail and the same shall be in lieu of personal service upon a party.

X. DISCHARGE OF COUNSEL. Sixty-one (61) days after filing of this Judgment and Decree, all attorneys of record will be automatically discharged without further notice.

XI. DOCUMENTS OF CONVEYANCE. Each of the parties shall, upon demand, now or in the future, execute, acknowledge and/or deliver any and all documents necessary to carry out the terms and conditions of this agreement and Judgment and Decree. If a party is unable, unavailable or refuses to do so, a certified copy of this Judgment and Decree of dissolution may be recorded and/or utilized with the same force and effect as if a deed, conveyance, transfer, assignment or other document had been personally executed, acknowledged and delivered to that party. If a party refuses to cooperate, the other party shall be entitled to collect all reasonable attorney’s fees and other costs in connection with enforcement of this agreement and Judgment and Decree due to the failure of a party.

XII. APPENDIX A The attached Appendix A is incorporated and made a part of this Judgment and Decree.

XIII. ENTRY OF JUDGMENT AND DECREE. Entry of Judgment shall not be stayed pursuant to Rule 125 of General Rules of Practice for District Courts, but shall be entered immediately by the court administrator.

ORDER FOR JUDGMENT

NOTWITHSTANDING GEN. R. PRAC. 125,
LET JUDGMENT BE ENTERED IMMEDIATELY

BY THE COURT:

Dated: __7/20_, 2012 _____________________________
Stephen W. Jensen
Judge of District Court

I hereby certify that the above Conclusions of Law constitute the Judgment and Decree of the Court.

IT IS HEREBY ADJUDGED THAT JUDGMENT
IS ENTERED AS STATED ABOVE.
ATTEST: Family Court Administrator

Dated: ______________, 2012 By: __________________________
Deputy

MEMORANDUM

Mack, File No. 27-FA 11-xxxx

Procedural background

This case was assigned to Referee Alice Raleigh, but she was out on an extended medical leave when the case came on for trial and I agreed to step in and handle the trial. (Footnote 1 Referee Raleigh recently announced that she will not be returning to the court and is resigning her position.) Referee Raleigh’s October 18, 2011, Trial Order set the case for a two-day trial. The Presiding Judge of Family Court, Ruth Washington, recently met with the parties and attempted to settle the case. She helped the parties negotiate a partial settlement (Exhibit 300) and then reminded both parties that the trial would be limited to two days. This information was imparted to me before I agreed to pitch in and handle the trial in Referee Raleigh’s absence. As Chief Judge, I needed to know how much trial time would be expected of me in order to determine whether I could accept the assignment and still meet my obligations as Chief Judge.

My file review revealed that Referee Raleigh had imposed certain obligations on the parties that were designed to expedite the trial. Her decision to limit the trial to two days appears to have been based on the assumption that the parties would comply with those obligations. Neither did. Husband failed to pre-mark his exhibits starting with the number 101. Instead, he pre-marked his exhibits with the number 1 - using the numbers assigned to wife. He also failed to provide the court with an exhibit binder, failed to provide his proposed exhibits to wife in a timely manner, and failed to follow the required protocol for garnering exhibit admissibility stipulations. These shortcomings meant that a significant amount of trial time had to be used to re-mark all of his proposed exhibits, followed by arguments regarding admissibility. Husband’s failure to provide the court with an exhibit index also meant that a significant amount of time was wasted frequently shuffling through loose piles of exhibits whenever particular exhibits became germane to the inquiry I could have exercised my discretion to follow Referee Raleigh’s order to the letter and excluded husband’s exhibits due to his failure to comply with the trial order, but I declined to do so. Instead, I afforded self-represented husband a considerable amount of accommodation and helped him with his exhibit introductions and lines of inquiry when he struggled. (Footnote 2: [A] district court ‘has a judicial duty to ensure that a case is presented based on all applicable law’ and must be ‘especially aware’ of this duty when, as here, a party is pro se. Christenson v. Argonaut Ins. Cos., 380 N.W. 2d. 515, 519 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986)” Mignone v. Bouta, 2005 WL 3371082 (Minn. App. 2005). “A trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodations so long as there is no prejudice to the adverse party.” Kasson State Bank v. Haugen, 410 N.W. 2d 392, 395 (Minn. App. 1987).)

Wife also also failed to exchange her exhibits and file them with the court in a timely fashion. I accommodated her as well by not excluding her untimely exhibits. I also helped wife with the presentation a few times when neither wife nor the Mandarin interpreter understood her attorney’s questions. I might add that even in English I had trouble understanding some of counsel’s questions. In order to move the trial along I intervened on occasion and asked a question or two in a manner intended to aid the interpreter’s understanding.

In addition to the foregoing efforts, the record will reflect that on numerous occasions I advised husband that his cross examination was taking way too long and yielding little of substance. I urged him to reserve more of his allotted time for his own testimony. He ignored my attempts to help.

Wife also contributed to the difficult trial. On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman. This improper conduct started with her discovery responses. For example, in response to ‘request” number 8 (e.g. interrogatory #8), wife stated, “He (husband) received two large life insurance policies in 2010, but gave it all toJoyce Johnson, Joe Nelson, and Elizabeth Mora after Chester’s (husband’s) numerous affairs.” (Ex. 118) Wife’s response to number 13 suggested that husband ‘spent all of his money on mistress Joyce Johnson.” (Id.) Instead of reigning in her client, wife’s counsel signed the discovery responses that improperly interjected fault. When wife attempted to replicate her discovery responses and interject fault at trial, I made it clear that I would not entertain such testimony. Wife was not deterred and adduced Respondent’s alleged extra-marital affairs on more than one occasion. I mention this not just because the topic was improper, but because husband was unrepresented, obviously upset with the topic, became distracted, and it veered him off task. As far as I could glean, counsel did nothing to restrain her client from proceeding ahead in this manner. Wife also repeatedly failed to confine her answers to the matters raised by the questions. Time and time again she went far beyond the question, vented her anger at husband, and otherwise provided non-responsive information that riled husband and shifted his focus off task.

I made all these observations simply to support my view that the two days set aside for trial by Referee Raleigh, and reaffirmed by Presiding Judge Washington, were not overly optimistic. The case easily could have been tried in less than two days had the parties complied with the trial order and behaved in manners other than I described above.

Attorney’s fees

Wife seeks both need based and conduct based attorney’s fees. I will address her need based request first. It is clear that wife, who is currently unemployed and dealing with recurrent cancer symptoms, does not have the ability to pay her attorney with her current income. (Footnote 3: She receives $280 to $300 per month in retirement from China. (Exhibit 118, #29)) It is equally clear that husband does not have the ability to contribute to wife’s attorney’s fees using current income (especially considering the hardship sharing maintenance award.) He is a 71 year-old retired person with less than $2,000 per month in combined pension and social security income, plus steadily mounting debts. (Footnote 4: I discuss elsewhere in this memorandum the fact that husband’s real estate holdings do not yield significant, consistent, positive cash flow.) Although he enjoyed legal representation at the beginning of these proceedings, he was reduced to self-representation during the bulk of the litigation.

Both parties have little, if anything, in liquid assets. Their bank accounts are modest, wife has a modest retirement account, and husband has sold most of his pre-marital securities. If husband were required to contribute to wife’s attorney’s fees, he would need to sell non-marital assets to come up with the money. The bulk of those non-marital assets are real estate holdings in the depressed north side of Minneapolis. Wife has non-marital real estate in China, valued at approximately $200,000. (Ex. 118, #14) If non-marital property must be liquidated to pay counsel fees, wife is able to liquidate her own non-marital real estate to achieve that end.

I stepped in to preside over the parties’ dissolution trial because their assigned judicial officer was out on an extended medical leave. Because I had not presided over this case from the beginning, I did not have the opportunity to watch the case unfold and thus gradually develop an opinion regarding which party had been the most obstreperous and which party had been pursuing the most unreasonable agenda. However, I bring over eleven years of full-time Family Court experience to the table. Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by wife herein were about as weak and unjustified as I have encountered during my many years as a Family Court judge. In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.

For example, most of the real estate held in husband’s name was acquired prior to the marriage, but wife contended that she acquired a marital interest in husband’s small apartment building and 4-plex on Glenwood Avenue in North Minneapolis, plus his parents’ former home in Milford, Pennsylvania. She argued that she acquired a marital interest in these properties because she spent a considerable amount of time and effort improving and maintaining them. Credible evidence adduced during the trial belied this claim and demonstrated that her efforts were nominal at best and vastly inflated in a self-serving manner for litigation purposes.

Wife also contended that the enhanced value of husband’s pre-marital securities portfolio became marital property because he “actively managed” his securities accounts to the point that any increase in value attributable to such efforts became marital. (Footnote 5: Husband’s securities produced nominal, taxable interest that would qualify as marital property. See the Schedule E’s from the parties 2006 through 2010 tax returns. (Exs. 14-18)) There was no credible evidence that husband actively managed his portfolio. Instead, credible evidence demonstrated that husband bought or sold stock on average once per year, with many of those transactions involving the liquidation of pre-marital securities in order to pay mounting debts.

One could spend a fortune of time reviewing each and every pleading and correspondence item herein and probably find that husband was dilatory on numerous occasions. That same exercise would likely reveal that wife took positions, both procedurally and substantially, that also increased the length and cost of this litigation in small increments. For example, with counsel’s complicity, wife objected on relevancy grounds to a number of husband’s interrogatories, or objected that the question was duplicative, when neither was the case - not even close. (See Ex. 118 numbers 3 and 10 for examples.) Such actions by both sides likely contributed to the length of this litigation, but such delays pale in comparison to the main litigation drivers that I explained above: wife’s unreasonable and unjustified positions on big-ticket items that made settlement impossible and a trial inevitable.”

Spousal maintenance

Wife seeks spousal maintenance from husband, while husband makes no such request. Spousal maintenance is paid out of future income and earnings. There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.

Wife is a 56 year-old immigrant from China who has not mastered the English language, even to a moderate degree. She worked at Target for a short time until a work injury ended that job. She suffers from serious health issues including recurrent cancer for which she has undergone long bouts of debilitating chemotherapy. She also requires regular insulin injections (the cause of which was not explained during the trial.) Lacking medical insurance in the US, wife frequently travels back to China for medical treatment. She is currently unemployed and receives at most $300 in retirement income from China. From a need-based perspective, wife is a strong candidate for permanent spousal maintenance.

Wife contends that she needs $2,000 per month upon which to live. At no point in her testimony did wife testify that this “need” number comports with the standard of living established during the marriage. There was plenty of testimony that the parties lived a frugal existence, but the record does not reflect whether the amount wife claims she “needs” today reflects that frugality. (Footnote 6: At the present time wife resides with Her daughter in Herndon, Virginia, when she is not in China. The down payment for her daughter’s townhouse, plus considerable additional funds for improvements and furniture came from the proceeds generated when wife sold the smaller of her two apartments in China. Wife’s answer to interrogatory number 9 states that her daughter was a joint owner of that smaller apartment. (Ex. 118) Wife has a bedroom in the Herndon townhouse for which she pays no rent - although she contends that her daughter is merely “loaning” her the money and that she must repay her daughter for the rent free living. Wife’s $2,000 “needs” budget includes $1,000 per month for rent, up from the earlier $800 figure included in her trial exhibit. (Ex. 5) It should be noted that when husband tried to inquire into this rent-free living arrangement, wife refused to answer the interrogatory, claiming that husband sought irrelevant information. (Ex. 118, #26))

Unless unusual circumstances exist, the standard of living established during the marriage is a mutual standards, which appears to be the case here. Although husband did not offer any trial evidence regarding his monthly budget or “needs”, wife introduced into evidence husband’s interrogatory answers which revealed a $2,070 monthly “needs” budget. (Ex. 24A, answer to #13)

Although husband clearly lacks sufficient retirement and social security income to meets his needs and still contribute to the wife’s needs in a significant amount, it remains possible that his real estate holdings generate enough positive cash flow to fund a maintenance payment. Neither party offered any compelling evidence on this topic, but my detailed review of the exhibits yielded useable information.

Husband’s Milford, Pennsylvania property that he inherited from his family does not produce any income - it has been a drain on other resources/income. Exhibit 377 is the lease that allows Linda Davis to occupy part of the Milford property in return for which she pays $350 and does some maintenance work. Schedule E from the parties’ 2006-2010 tax returns shows that the Milford property produces less than $5,000 per year in rent. (Exhs. 14-18) The combined taxes and utility costs exceed that rent by 100 + %, without even factoring in other ownership expenses. (Id.)

The appraisal for husband’s 4-plex at 1702 Glenwood Ave. in Minneapolis suggests that the property enjoys a rental income stream of $32,640 per year, but that rosy figure has not been borne out by the actual rents generated between 2006 and 2010. 2006 appears to have been a particularly poor year, rent-wise, so I will exclude it from my analysis. During 2007 through 2010, the 4-plex averaged about $17,000 per year in rental income. The 2010 rental income was $16,545. Core expenses including taxes, insurance, utilities, and mortgage payments ate up over $14,000, and 2010 represented a Year during which husband paid only approximately half of his normal mortgage costs. Adding other costs of ownership during 2010 produced a loss of over $2,000, even after backing out depreciation. The 4-plex produced useable net income only once in those five years and it was paltry - approximately $2,600. (Footnote 7: It should be noted that because one of the units has functioned as their homestead, the building might be profitable if that unit were rented out, but then husband would have to spend money on housing elsewhere.)

The appraisal for husband’s 9-unit apartment building at 1708 Glenwood suggests that it produces $57,000 per year in rental income, but the actual average Yearly rent was $42,000 between 2006 and 2010. With no mortgage encumbering the apartment building, the complex produces, on average, over $9,000 per year in net income. With depreciation added back, the number rises to almost $13,000.

The parties’ duplex at 1715 Glenwood alternates between losing years and profitable years, but over a 5-year continuum, the duplex loses money.

The rental picture would improve if the parties sold the duplex, but then a whopping deficiency judgment would be added to the mix. On balance, the four real estate holdings yield little combined Yearly income to insert in the maintenance equation.

The next question is whether husband receives yearly dividends sufficient to fund maintenance. Husband owned Gannett shares on the marriage date which paid dividends in excess of $300 per year between 2006 and 2008, but declined thereafter to $51 in 2010. (Exc. 14-18) Husband’s pre-marital Wells Fargo shares paid a $208 dividend in 2011, which was the highest amount since he acquired the stock; his pre-marital shares in Arbitron pay a nominal dividend each year; and his pre-marital shares in US Bank ceased paying dividends after 2009. (Id.) Although his pre-marital shares of PG&E paid an average of $500 per year, the stock was sold in May 2011. His Target shares paid a dividend of less than $200 per year, but that ceased after a significant portion was sold in May 2011. Finally, his pre-marital Germany Fund paid small dividends through 2010. (Footnote 8: This may now be called the “Euro Equity Fund.”)

The only security owned by husband that paid significant dividends was Wachovia Bank. It paid an average of $5,000 per year in 2006 and 2007, but then the amount dropped precipitously to $145 in 2009. It appears that the Wachovia stock may have been sold, or rolled into Wells Fargo, a stock that husband owned prior to the marriage. No sale receipt was introduced at trial, but the acquisition of Wachovia by Wells Fargo may account for the increase in Wells Fargo dividends between 2010 and 2011, but still paltry in comparison to what Wachovia once paid.

Bottom line: husband’s dividends are now a fraction of what they were in the past, many of his stocks have been sold, and his dividend income will have little impact on his ability to pay maintenance because maintenance is paid out of future income and there is little evidence that husband will be enjoying significant dividend income.

I have already explained that wife is a strong candidate for maintenance from a need perspective, but husband does not generate enough current income to meet his needs and pay a significant amount of maintenance. This means that wife will walk away from this dissolution without any maintenance unless I exercise my discretion to make the parties share the economic hardship of their dissolution. (Footnote 9: In Seidl v. Seidl, 1998 WL 8480, (Minn. App. 1998), the Court of Appeals explained that, “A maintenance award is not an abuse of the trial court’s discretion simply because the obligor lacks sufficient income to pay the award and his reasonable expenses. Cf. Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App 1986).” Valenta v. Valenta, 1998 WL 346684, (Minn. Appl. 1998) added that, “this principle that changes in living standards resulting from dissolution should be equalized is supported by Supreme Court precedent station that a spouse requesting maintenance is entitled to support that is ‘not simply that which will supply her with the bare necessities of life, but such a sum as will keep her in the situation and condition in which [the other spouse’s] means entitle her to live.’ Arundel v. Arundel, 281 N.W.2d 663, 666-67 (Minn. 1979)” In Parker v. Parker, 1997 WL 658938, *4 (Minn. App. 1997), the trial court determined that the obligee suffered a $2,468 shortfall between income and reasonable and necessary expenses, while the obligor enjoyed a $408 surplus. In addition to awarding the surplus, the trial court divided the shortfall and made the parties share the pain on an equal basis, stating that “given the length of the marriage, it would be unfair to allow [appellant] to meet all of his own needs and let [respondent] experience such a significant shortfall.” The court of Appeals held that this was not an abuse of discretion. See also Ganyo v. Engen, 446 N.W.2d 683 (Minn, App. 1989), Shaw v. Supalo, 1996 WL 438807 (Minn. App. 1996), Martins v. Barnes, 2002 WL 31369512 (Minn. App. 2002), Austin v. Austin, 2004 WL 422566 (Minn. App. 2004) and Viola v. Viola, 2006 WL 44349 (Minn. App. 2006).) Both parties suggest that they require approximately $2,000 per month to meet their needs, but $1,000 of wife’s budget represents “rent” that she does not pay when she resides with her daughter. Although wife testified that eventually she must begin paying rent, her testimony was not at all convincing. As her interrogatories explained, wife jointly owned with her daughter the China condominium that was sold to finance the acquisition of her daughter’s Herndon, Virginia townhouse. There was some suggestion that the China property was not available to single people and thus wife put her daughter’s name on the title so that wife could acquire the property If that is the case, the approximate $100,000 in sale proceeds given to wife’s daughter to purchase, improve, and furnish the Herndon townhouse may amount to adequate consideration for wife’s rent free living arrangement. The record is not at all clear in this regard, but the paltry record presents more of problem for wife than husband because it was wife’s burden to prove her actual costs necessary to duplicate the marital standard of living and, perhaps more important, wife bore the practical burden of persuading me to exercise my discretion and apply the sharing of the hardship doctrine.

If I require husband to pay $500 per month in maintenance, husband will not be able to meet his full needs out of current income. On the other hand, he has been diverting income generated during the marriage to pay the losses incurred to carry his family home in Pennsylvania. Husband always remains free to divest himself of the Milford property, cut his losses, and free up some real estate related, positive cash flow to lessen the burden of any maintenance obligation. With $500 per month in maintenance wife will be alike amount short in meeting her non-rent needs. I fully understand that wife will be disappointed with this amount, but she needs to understand that had I not exercised my discretion to force the parties to share the economic hardship incident of their dissolution, she would have received far less in maintenance or perhaps none.

Dissipation claim (Footnote 10: “dissipation” is a common law term of art that has been codified in Minnesota. See section 518.58, subd. 1a Today the question is whether a spouse “transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life.”)

Wife’s dissipation claim was grand in scope and theory, but short on detail. (Footnote 11: By statute, the party advancing the dissipation claim bears the burden of proof. Minn. Stat. section 518.58, subd. 1a.) There was no testimony that husband gambled away marital assets or spent marital money on drugs - the usual fare of dissipation claims. Instead, wife’s main theory segues from her attempt to interject fault into the equation: she contends that husband spent copious amounts of money on his mistress (or mistresses). The record does not contain a credible summary of the amount of money allegedly spent in this manner. (Footnote 12: Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation. See Hovelson v. Hovelson, C6-99-1893 (Finance & Commerce 6/5/00), 2000 WL 687782 (Minn. App. 2000) wherein the trial court made a “reasonable” decision, per the Court of Appeals, that Husband had dissipated assets during the dissolution because “Husband continually refused to turn over the [requested] documents, and only turned over partial, inaccurate and disorganized records when the court ordered compliance with the discovery when the court ordered compliance with the discovery requests. See Federated Mut. Ins. Co. v. Litchfield Precision components, Inc., 456 N.W..2d 434, 436-437 (Minn. 1990) (Noting that failure to produce evidence permits inference that evidence, if produced, would have been unfavorable); Baker v. Citizens State Bank of St. Louis Park, 349 N.W. 2d 552, 558 (Minn. 1984) (the district court may draw inference from circumstantial evidence). The difficulty lies in translating the dissipation inference into a supportable number. Also, as explained above, wife failed to cooperate with discovery as well as by refusing to answer patently relevant inquiries.) However, as I explained above, between 2006 and 2010, husband’s rental properties were never occupied by tenants paying full market rent year round. The record also reasonably supports a finding that the person identified by wife as husband’s mistress (with that label challenged by husband) spent a considerable number of months living in husband’s rental property without paying rent (or anything close to market rent). The record also reflects that husband loaned a not insignificant amount of money to this person, on many occasions, with no seeming legitimate effort to recover the loan proceeds. To put it rather bluntly - this did not pass the smell test. I understand philanthropy, charity, and a helping hand, but husband offered no credible evidence that explained such benevolence when, as a married man, he and his wife were experiencing an ever increasing debt load and husband was liquidating assets left and right. The problem I am having here is that wife did not offer credible evidence to support a specific dissipation number that I could insert in my marital asset division formula, In addition, wife is making inconsistent claims. On the one hand, wife contents that husband dissipated marital assets by making these “loans”, but, on the other hand, wife treats these loans as legitimate assets in crafting her property balance sheet.

Instead of adding back such expenditures/ loans to the marital balance sheet (for which I have not been provided a usable accounting), I am exercising my discretion to award wife a larger portion of the remaining marital property (meaning a significantly larger share of the marital debt, including a $63,000 potential deficiency regarding 1715 and 1719 Glenwood) and awarding her $50,000 as a combination dissipation/share of husband’s non-marital property award. She is entitled to such treatment because she needs it and because it is reasonable to find/conclude that the marital pie would be significantly larger today sans the money spent by husband for non-marital purposes as discussed above. Awarding wife this amount is also supportable based on the realization that husband chose to retain his inherited family home in Milford, Pennsylvania even though it did not produce positive cash flow. He necessarily had to spend other resources to keep the property afloat and the most-consistent source of such funds was the $9,000 plus yearly net income from the 9 unit apartment building. (Footnote 13: Even without finding “dissipation” in so many words, the trial court may still consider the parties’ respective efforts in preserving marital property and there is no presumption that they both contributed equally to the preservation. Luomo v. Luomo, C3-01-704 (September 18, 2001), 2001 WL 1085094 (Minn. App. 2001).) Although there is certainly a major non-marital component to this property, husband devoted considerable efforts to manage, maintain, and improve this property during the marriage such that a significant portion of the positive cash flow reasonably should be treated as a marital assets that was never used in a marital way.

Property Division

a. Marital

Before discussing the division, it is important to revisit the key assets. The parties agree that the 9 unit apartment complex at 1708 Glenwood Avenue, Minneapolis is worth $280,000. (Exh. 300) Husband owned this before the parties’ marriage and it is presently unencumbered. As I explained above, there was no credible evidence that wife made a significant enough contribution to the management, maintenance, and improvement of the apartment building to warrant transforming the non-marital character of this property let alone manufacturing the $100,000 marital component asserted by wife. The marital component is nominal at best. The parties stipulated that husband would received the apartment complex. (Ex. 300)

The 4-plex at 1702 Glenwood was also acquired before the marriage and the parties have agreed that it should be awarded to husband in its entirety. (Ex. 300) He has also agreed to assume the debt against the property. It has been appraised at $160,000. (Ex. 20) Husband attempted to opine that the 4-plex is worth just $103,000, but his opinion is based in large part on extrapolations from hearsay. Relying on husband’s opinion is further problematic due to the fact that he was not forthcoming with the information sought by wife during discovery, which was necessary for proper preparation of cross-examination. I will accept the appraised value. Wife takes the position that the entire net value of the 4-plex is marital, again based on vastly inflated claims of her efforts to manage, maintain, and improve the property. Any marital component is nominal.

The duplex located at 1715 Glenwood (and the adjacent property at 1719 Glenwood Ave.) which was purchased after the marriage, has no net value, although it has a stipulated market value of $110,000 (Ex. 300) and is encumbered by a $173,000 lien. (Id.) This property presents a debt division issue - not an asset division issue. Wife argued that the debt against the property includes pre-marital debt that was folded into a new loan, but credible evidence adduced at trial persuaded me that the property was debt free on the date of marriage. (Footnote 14: See Antone v. Antone, 645 N.W. 2d 96, 103 (Minn. 2002), “We hold as a matter of law that a portion of market-related appreciation during the marriage [where marital funds were used to reduce the encumbrance] is marital property.” Wife argued that Antone was at play in this case, but there was no credible evidence that marital funds were used to retire debts. There was credible evidence that non-marital assets (such as life insurance proceeds on the life of husband’s brother) were used to retire debts.)

Even though I find that the $173,000 encumbrance does not include pre-marital debt that was folded into the most recent loan, it is clear that husband favored his non-marital properties to the disservice on the parties’ one marital parcel by not spreading the lien among the multiple parcels. As explained above, significant amounts of cash had to be dumped into the Milford, Pennsylvania property every year. Husband’s pre-marital 4-plex also lost money more often than it made money and the sustaining cash flow likely came from the proceeds of the current $173,000 encumbrance against the duplex or prior loans that were rolled into the $173,000 jumbo debt that the parties face today. As I set forth above, I am exercising my discretion to craft an unequal division of the marital property and debts. Since total marital debt significantly exceeds the marital assets, I am exercising my discretion to achieve equity on the debt side and require husband to pay this debt and hold wife harmless.

Consistent with her claims regarding the Glenwood rental properties, wife claims that her contributions to the duplex produced a marital component, but this time wife suggests a much more modest marital component ($30,000 versus $170,000 + for the other two). Even at wife’s more modest level, her claimed marital component remains vastly inflated. Once again, I find that the record only supports a nominal marital component at best.

Wife contents that the parties own marital securities valued in excess of $70,000. The record does not support such a rosy picture. The parties acquired two different positions in BMC, but that company went belly up. (Ex. 316) Their marital shares in Northwest Airlines were sold in 2007 at a loss. Their Metris interest was sold, yielding a significant gain, but the proceeds were not traced by either party and their Xcel Energy stock was similarly sold, as was what little was left of their Enron stock. Husband had a number of other equity positions that were acquired before the marriage, most of which have been sold. No sale document was introduced regarding the parties’ Qwest stock and I can only assume that they still hold the position (now Century Link), but its value at acquisition was just $1,200. Bottom line, the parties have little if any marital securities. (Footnote 15: I am not ignoring Baker v. Baker, 753 N.W. 2d 644 (Minn. 2000) or Prahl v. Prahl, 627 N.W. 2d 698 (Minn. app, 2001) There just isn’t much, if anything, left in the portfolio, against which to apply such cases.)

Wife contends that husband has a $100,000 + AXA Life Insurance account and that $15,000 in interest on that account is marital. The evidence does not support her claim. Credible evidence reflects that husband received the proceeds from a large life insurance policy insuring his now deceased brother and deposited the funds in an AXA Equitable account that held $114,663.01 as of February 26, 2010. (Exhibit 300) By May 11, 2011, 2011, it was down to $1,337.01. Husband credibly testified that the insurance proceeds were used to retired a number of pre-existing loans and cover other “shortages”. These “shortages” are consistent with the ongoing negative cash flow generated by the Milford, Pennsylvania, and 4-plex properties.

Other than a few minor property items discussed in the numbered Findings of Fact, I have completed my analysis of the “major” assets and have found little in the way of major marital assets, but quite a bit in major marital debt, which I am assigning to husband along with the real estate itself.

The only possible significant marital assets would be the loans to Joyce Johnson. If wife wants husband to assign those loans to her and undertake collection efforts, I will consider it. Accordingly, I am reserving jurisdiction over the Joyce Johnson and related loans and will afford wife 30 days to step forward and indicate her interest in having the loans assigned to her.

b. Non-marital

In order to avoid unfair hardship to one spouse, Minnesota Statutes section 518.58, subdivision 2, allows the trial court to award up to 50% of the non-marital property owned by the other spouse. Numerous factors must be considered before doing so. First, the trial court must consider the length of the marriage, plus any prior marriage by either party. Although the parties’ marriage was not an exceedingly long one, just about eleven years, it came at a time in their lives when the prospects of a subsequent marriage seem dim. As explained above, wife is in her 50’s, husband is over 70. Neither party testified regarding prior marriages, if any. Next, the trial court must consider the age, health, station, occupation, amount and sources of income, vocational skills, and employability of each party. Wife is in poor health and suffers from recurrent cancer among other health problems; is Chinese with little command of the English language; has a limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited. That reality, coupled with husband’s inability to pay her significant maintenance, portend a near destitute existence, unable to meet her basic needs on her own, with no legitimate prospects of acquiring additional capital assets.

Husband is 71 and not a likely candidate for significant future employment income. The record reflects that the parties lived a frugal existence, with husband not generating considerable income at his pre-retirement, accounting related job. He appeared in good health for his age and no evidence was introduced to the contrary. The Glenwood Avenue properties discussed above were acquired by husband based on his perceived need for retirement funds. The duplex has no net value, but the 9 unit apartment complex has significant value, as does the 4-plex. The family home and property that husband inherited in Pennsylvania is worth over $250,000. He also owns non-marital property in Port Wing, Wisconsin, for which neither party offered a value figure. The value of husband’s over-all estate is already being reduced by $63,000 because I am exercising my discretion to assign husband a larger share of the marital debt, including the $173,000 mortgage against the Glenwood Avenue duplex valued at $110,000.

The record does not support a finding that husband has substantial, liquid non-marital assets. Any decision to award wife a percentage of his non-marital estate necessarily must contemplate that he will be unable to pay such funds when judgment is entered. In order to satisfy such an award, husband likely will need to sell a portion of his non-marital real estate or borrow money secured by that real estate. Excluding the Port Wing, Wisconsin property, the Pennsylvania and two multi-unit properties at 1702 and 1708 Glenwood Avenue have a combined net value of approximately $631,000. (Footnote 16: Husband’s Milford Pennsylvania property has been appraised at $275,000; 1702 Glenwood Avenue is worth $160,000, but is encumbered by a mortgage of approximately $84,000, leaving an approximate net of $76,000; and 1708 Glenwood Avenue, Minneapolis is worth $280,000.) By requiring husband to pay the loan on the duplex at 1715 Glenwood, and hold wife harmless, I am already reducing the approximate net value of husband’s big ticket items to $568,000. Wife’s China real estate is worth approximately $200,000. The difference between the two is approximately $368,000. I would not find it fair or reasonable, nor would I exercise my discretion, to award wife anywhere close to 50% of this difference. Husband is 71, with little or not chance to build up new capital, and I am already causing him to share the hardship incident to the dissolution by ordering him to pay more maintenance than he can afford and still meet his own needs, plus a disproportionately large percentage of the marital debt. Other than the Pennsylvania property, his estate represents a lifetime of effort and it would not be fair or reasonable to divest husband of close to 50% of such efforts based on a relatively short marriage to wife.

Given the length of the marriage, the parties’ financial circumstances as set forth above, the unequal debt division, the hardship-sharing maintenance award, and the merits of wife’s dissipation claim, I am exercising my discretion to award wife $50,000 as a combination dissipation/share of husband’s non-marital property award, unless she elects instead to be awarded the loans made by husband to Joyce Johnson, Joe Nelson, and Elizabeth Mora. (Footnote 17: I have already indicated that I will reserve jurisdiction over these loans to give wife and her counsel time to decide whether they really believe these are marital assets and wish to have them assigned to wife for collection purposes.)

JTS

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

(I) RESPONDENT’S POST-TRIAL MOTIONS AND COURT DECISION

(26) Post-Trial Motion for Amended Findings of Fact/ Conclusions of Law or, Alternatively, a New Trial (August 20, 2012) See divorcebook.html, chapter 37.

_____________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children
In Re the Marriage of:

Rose Fen Mack
Petitioner

and

POST-TRIAL MOTION FOR AMENDED
FINDINGS OF FACT/ CONCLUSIONS
OF LAW OR, ALTERNATIVELY,
A NEW TRIAL

Chester Arthur Mack Presiding Judge: Stephen F. Jensen substituting for referee Alice Raleigh
Respondent
File No. 27-FA-11-XXXX

________________________________________________________________

NOTICE OF MOTION

TO: Rose Fen Mack, The Kang Ming Law Firm, 8XXX Wayzata Boulevard,

Suite 320, Golden Valley, MN 55426

PLEASE TAKE NOTICE that the undersigned brings a post-trial motion before Judge

Stephen Jensen for amended findings of fact/ conclusions of law or, alternatively, a

new trial in the divorce proceedings between Rose Mack and Chester Mack.

 

MOTION FOR AMENDED FINDINGS OF FACT/ CONCLUSIONS OF LAW OR, ALTERNATIVELY, A NEW TRIAL

The Respondent, Chester Mack, moves the Court pursuant to Minnesota Rules of Civil Procedure 52.02 and 59.01 to amend its Findings of Fact / Conclusions of Law or, alternatively, to order a new trial.
 
The motion for a new trial concludes with a BASIS FOR A STAY OF EXECUTION.  Respondent requests the Order filed July 20, 2012 be stayed until a ruling is made on these post trial motions.
 
Minnesota Rules of Civil Procedure states after the listing of (a) through (g) under 59.01 of Grounds for a new trial:  “On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and  conclusions of law or make new findings and conclusions, and direct entry of a new judgment.”  Based on this, Respondent understands the Judge’s order may include any combination of elements of a new trial and amended findings and conclusions of law as are presented and requested in this motion.”

The motion for amended Findings of Fact / Conclusions of Law is presented in Part I of this petition. The motion for a new trial is presented in Part II of this petition. The motion for a stay of execution is presented in Part III of this petition.

Court hearing on October 9, 2012 at 9:00 AM at Room 517

at Family Court at 110 S. 4th St. Minneapolis, MN

 

Notice to other party (See attached.)

=== === === === === === === === === === === === === ===

NOTICE TO OTHER PARTY

1. This is an important document that affects your rights. A court hearing has been scheduled, and the other party is asking for new court orders. If you do not understand this document, contact a lawyer for help. You must prepare a written response if you disagree with the other party’s requests and you want the Judge to consider your facts and information. You cannot simply attend the court hearing and tell the Judge your side of the situation.

2. The other party asked for this court hearing. This Notice of Motions and Motion and the Affidavit in Support of Motion were prepared by the other party. They explain what the other party is asking for and how the requests satisfy the law.

3. If you fail to follow all of the court rules, the Court may give the other party everything they have asked for, without your input.

4. Responding This is what you should do now:

Read the Motion. Read the Notice of Motion and Motion and Affidavit in Support of Motion very carefully. If you do not understand what the other party is requesting, ask a lawyer for help.

Prepare your response. If you disagree with any of the other party’s requests, and you want the court to consider your facts and what you want, you should prepare papers called Responsive Motion and Responsive Affidavit in Support of Motion. If you do not have a lawyer, you can get forms at the Family Court Self Help Center, 1st Floor, Family Justice Center, 110 S. 4th St., Minneapolis, Telephone (612) 596-8519. These forms will guide you in preparing your responsive papers.

Inform the other party. Your Responsive Motion and Responsive Affidavit in Support of Motion must be hand-delivered to the other party at least five (5) days before the hearing or mailed to the other party at least eight (8) days before the hearing. Note: You must follow the court rules and laws for service and filing. This is not a complete explanation of the requirements.

File your response with the court. Your Responsive Motion and Responsive Affidavit in Support of Motion and an Affidavit of Service must be filed in person with the court administrator at least five (5) days before the hearing, or mailed to the court administrator at least eight (8) days before the hearing. The filing address is:

Family Court Division
Hennepin County District Court
Family Justice Center, 1st Floor
110 South 4th Street
Minneapolis, MN 55401-2279

Filing Fee: If you never paid a filing fee in this case, you will pay the filing fee now. The initial filing fee is $402.00 (or $372.00 if this is a divorce case), and the fee to file your motion is an additional $100.00. You can request an order waiving the fee if you are low-income. The court administrator cannot accept your papers for filing without payment of the fee or a waiver.

New Issues: If you want to raise new issues in your Responsive papers, instead of just responding to issues raised by the other party, your papers must be hand-delivered to the other party at least ten (10) days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the Court Administrator in person at least ten (10) days before the hearing, or mailed at least thirteen (13) days before the hearing.

5. The Hearing: Go to the hearing and bring a copy of your papers with you. Arrive at court 15 minutes before the scheduled hearing time. If you are late, the Court may hold the hearing without you. If you missed the deadlines for the written response, you should still attend the court hearing. However, if you missed the deadlines for the written response, the Court rules state that the Judge may refuse to look at papers you bring to the hearing, and may refuse to let you explain your side of the situation at the hearing.

6. Accommodation: If you need an interpreter or an accommodation due to a disability, please call your Judge’s clerk at least 5 days before your scheduled court date. To reach the clerk, call (612) 348-6734, select option 1 and then option 2. The Judge/Referee’s name and your hearing date are listed after the notice section on the first page.

7. Court date concerns: If you have questions about your court date or need to change your court date, please call the clerk for your Judge/Referee. To reach the clerk, call (612) 348-6734, selected option 1 and then option 2. The Judge/Referee’s name is stated after the notice section on the first page.

VERIFICATION AND ACKNOWLEDGEMENTS

I have read this document. To the best of my knowledge, information and belief, the information contained in this document is well grounded in fact and is warranted by existing law.

I have not been determined by any Court in Minnesota or in any other state to be a frivolous litigant and I am not the subject of an Order precluding me from serving or filing this document.

I am not serving or filing this document for any improper purpose, such as to harass the other party to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court.

I understand that if I am not telling the truth or if I am misleading the Court or if I am serving or filing this document for an improper purpose, the Court can order me to pay money to the other party, including the reasonable expenses incurred by the other party because of the serving or filing this document, court costs and reasonable attorney’s fees.

DATE August 20, 2012 Chester Mack

signature of: Petitioner X Respondent

Street Address 1702 Glenwood Avenue

City/State/Zip Code Minneapolis, MN 55405

Telephone Number (612) 374-XXXX

Telephone Number of other party (612) 885-XXXX

=== === === === === === === === === === === === === ===

PART I: MOTIONS TO AMEND FINDINGS AND CONCLUSIONS OF LAW

The respondent, Chester Mack, moves that the Court amend its findings of fact
and conclusions of law entered on July 20, 2012, as follows: Deleted text is indicated by
strike through line. Additional text is underlined.

A. Findings of Fact

1 Amend Finding of Fact No. 10 to read: “ The parties are not currently subject to a
Domestic Abuse No Contact Order. with provisions allowing contact, Hennepin County
Court File 27-CR-11-XXXX.

2. Amend Finding of Fact No. 11 to read: “The parties’ financial circumstances are set
forth in the Attached Memorandum, supplemented by Respondent’s motion for
Amended Findings, are as follows:

a. Husband
i. Husband has little in the way of liquid assets, little remaining credit other
than what might be raised by mortgages, and, considering his age, no
reasonable prospect of employment.

ii. Husband’s rental property business has been yielding little or no profit
or positive cash flow, even after depreciation is backed out. In 2010, the
total loss was $13,396.65. With depreciation omitted, there was a gain of
$1370.22 for the Year. Three properties contributed to the loss: 1702
Glenwood, $4593.07; 1715 Glenwood, $11,064.90; and Milford, $5468.00.
One property, 1708 Glenwood, contributed a gain of $7,728.90. (See Petitioner
Exhibit #18.) Over five Years, the four properties together lost an average of
$9287.77 per year and gained $3,255.04 per year if depreciation is
excluded. Items newly capitalized between 2006 and 2010 were
significant.

iii. Husband requires about $2,000 a month excluding monthly interest
obligations to meet his needs, and has less than $2,000 per month in
combined pension and social security income. His income has been
insufficient to meet expenses during the years of marriage, forcing him to
borrow continually or sell assets to make ends meet.

iv. By stipulation, Husband is to assume all real estate except for Wife’s pre-marital estate in China.

v. The Petitioner’s Pre-hearing Statement listed no debt. The parties’
marital debt as of 4/15/11 totaled $329,732.14 according to exhibits
presented at trial. Monthly interest on this debt was $1812.16 or $511.15
excluding interest included in the two mortgage payments.
Today it is $2,061.89 or $807.27 excluding interest included in the two
mortgage payments. (See Exhibit #4. )This would be an additional burden on
the husband’s ability to support himself if he assumes all the marital debt.

vi. Due to a high debt level relative to income, it will be difficult or
impossible for Husband to borrow if it is necessary to raise any substantial
amount of cash. If substantial cash is needed within a short time,
Husband would therefore be forced to sell property at a “fire sale” price,
with a very substantial loss of equity and probable destruction of his
rental-property business in Minneapolis.

Wife

i. Wife has little in the way of reported liquid assets, and no immediate
prospect of employment.

ii. Wife has a bedroom and lives with daughter in the Washington DC
area. Because Wife sold a condo in Beijing and provided daughter with
the down payment for the condo -- consideration totaling $100,000 -- Wife
lives rent free in this condo with her daughter.

iii. Both parties suggest that they require approximately $2,000 per
month to meet their needs, but $1,000 of wife’s budget represents “rent”
that she does not pay when she resides with her daughter. (Petitioner’s exhibit 5)
showing her monthly living expenses reports that, apart from rent paid to
the daughter, Petitioner requires $1,050 per month for other expenses.
Some other “needs” figures may be too high. For instance, Petitioner
reports that she needs $450 per month for food, compared with the
Respondent’s stated need for a $100-per-month food allowance.
As shown later, an estimate of the overstated needs would be about
$350 per month. Petitioner reports a monthly income of approximately
$400 per month. (Petitioner exhibit #6) If one subtracts $350 and $400 from the
wife’s claim to need $1050 per month excluding rent, it leaves $300 per
month in an income shortage for the month. The Petitioner owns two
apartments in Beijing - one a four-bedroom, two-bathroom apartment -
which are sitting empty and could be rented. (The Respondent’s income
profile assumes that all his properties are rented.) The rent money from
China would supplement whatever money the Petitioner needs to maintain
her current life style, even assuming she receives no spending money
from her daughter and is ineligible for a government disability payment if
unable to work. She would then have no hardship justifying spousal
maintenance or a share of non-marital property from the husband.

iv. If Husband assumes all marital debt, Wife will be debt free.

v. Wife owns free and clear one rentable condominium in Beijing, valued at
$240,000. Wife also has a second condominium in Beijing,
which may be a life estate, not disclosed during the proceeding, with an
unknown value. Wife has in the past received rental income from this
second condominium.

c. Relative ability to assume debt: Husband has an on-going residential rental
business which has marginal and uncertain net cash flow. Wife has the
China pension of $300/ mo., but owns rentable property in China. There are
mortgages on the marital real estate to be assumed by the husband and on one
of three non-marital properties owned by the husband but on neither of the wife’s
two non-marital properties in China.

3. Amend Finding of Fact No. 12 to read: “The parties’ real estate and investment
assets are set forth in detail in the attached Memorandum, supplemented by
Respondent’s motion for Amended Findings. Investment assets as of 4/15/11 are as
follows:

a. Husband:

i. Financial assets total $_73,777.7
ii. Stipulated values of real estate owned or assumed by husband are:
$110,000 for marital duplex at 1715 Glenwood Avenue, $160,000 for non-marital
four-plex at 1702 Glenwood Avenue, $280,000 for nine-unit apartment building at
1708 Glenwood Avenue, and $280,000 for the house and adjacent property in
Milford.

b. Wife

i. Financial assets are unknown.
ii. Wife owns a four-bedroom, two bathroom apartment in Tongzhou section of Bejing
worth $240,000 according to wife’s balance sheet dated May 1, 2012, and a
one-bedroom apartment near the Beijing zoo which is undisclosed and unvalued but
roughly similar to the apartment sold in 2010 although without an enclosed bathroom
and kitchen.

4. Amend Finding of Fact No. 13 to read: “The legal descriptions of the parties’ real
estate interests are as follows, along with encumbrances thereon:

a. The four-plex at 1702 Glenwood Avenue, Minneapolis, MN 55405, Hennepin
County, State of Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to
Minneapolis, Minnesota.

There is an encumbrance in the approximate amount of $86,300.

b. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin
County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

There is an encumbrance in the approximate amount of $0;

c. The duplex at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of
Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

There is an encumbrance in the approximate amount of $182,000.

d. Two parcels at 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of
Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

e. 100 Sawmill Sawkill Avenue, Milford, Pennsylvania. The legal description of this
property is: .75 Acre and improvements thereon, being set forth on tax map 113.13-03-70 Pike County, Pennsylvania.


f. Property located in Orienta Township, City of Bayfield, near Port Wing Wisconsin.
There is a dispute between the parties as to whether this land consists of 20 or 40
acres. A log cabin is also located on this property. The only legal description presented
to the court is as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

g. Condominium in Beijing, China at Hualong Residence Community, Tongzhou
District, Building 48, Apt 552. No legal description was provided to the Court.

h. A second one-room condominium in Beijing, China, not disclosed to the Court by
Petitioner, but referenced in Exhibit 369, email to Frederick Smith dated 4/14/11, and
in Petitioner’s reply to Respondent’s Interrogatories. This may be a lifetime tenancy,
and not owned. Legal description is unknown.

5. Amend Finding of Fact No. 15 to read: “A 1995 Mercury is titled in Respondent’s
name. The fair market value is unknown, but nominal for purposes of an equitable
property division $500 according to Petitioner’s Pre-hearing Statement.”

6. Amend Finding of Fact No. 16 to read: “ The parties have various bank accounts
with nominal value. Petitioner’s Wells Fargo checking, $100 as of April 15, 2011;
Petitioner’s Chinese Bank Accounts, $400 as of April 15, 2011; Respondent’s Wells
Fargo checking, $1,000 as of June 7, 2011; Joint Respondent’s banking account
through US Bank, account ending in 3556, $1,200 as of April 18, 2011; and Joint
Respondent’s banking account through US Bank, account ending in 2032, $500 as of
April 29, 2011. The two latter accounts with US Bank were closed to prevent fraud.

7. Amend Finding of Fact No. 18 to read: ” Prior to trial, the parties disagreed
regarding the marital debts in this matter. In order to clarify these issues, the court used
Petitioner’s Pre-hearing statement balance sheet to facilitated discussion and achieve
agreements regarding the debts. Using this process, the parties arrived at the following
agreements: The Advanta debt is $2,630.50; the Citybank Business card debt is
$12,001.85 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116); and the debt on the
Menard’s credit card ending in account # ending in 5093 is $1,893.52 (Exhibit 133).
Although disputed, Respondent agreed to be responsible for the Citybank Business
card, account # ending in 5466. There was no agreement regarding the responsibility
for the First National Bank of Omaha Visa charges (Exhibit 200) and the Menard’s credit
card debt in account #5093.
Testimony and exhibits introduced and accepted during the
trial identified the following items of debt existing on April 15, 2011, the date of the
initially scheduled pre-hearing settlement conference: $175,147.90 mortgage loan with
NationStar encumbering duplex at 1715 Glenwood Avenue (Respondent’s exhibit 208) and
$84,017.51 mortgage loan with US Bank encumbering fourplex at 1702 Glenwood
Avenue (Respondent’s exhibit 209); credit-card debts of $8,356.42 with VISA First Bank of
Omaha (Respondent’s exhibit 200), $5,233.49 with Chase), $3,737.66 with Advanta, and $3,723.32 with Citibusiness (exhibit 132) and $190.62 with Menards (exhibit 133) ; two unsecured lines of credit with US Bank with balances of $39,628.01 and $5,976.67 (exhibits 201 and 202); and a balance of $3,911.17 on a overdraft-protection account with US Bank. These debts total $329,732.15. Testimony given and exhibits accepted on the second day of trial revealed that the respondent had a total of $5,519.45 at time time of marriage on January 28, 2000, and that the petitioner had no debt. Therefore, the marital debt of the parties was $324,212.70 ($329,732.15 minus $5,519.45) on April 15, 2011.

8. Amend Finding of Fact No. 19 to read: ” Prior to trial the parties stipulated that
Husband would be awarded the Wunderlix Celluloid Prints, the Port Wing, WI,
improvements and land, the Mercury Tracer, 1702 Glenwood Avenue (4-plex), and 1708
Glenwood Avenue (nine-unit), and pay all encumbrances on these Glenwood
properties;
and that Wife would be awarded the condo located in Beijing, China. The
parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of
1715 Glenwood Avenue is $173,000 $110,000 (meaning no equity). The parties agreed
that these two Glenwood properties were entirely marital
1715 Glenwood Avenue is
entirely marital.
The also agreed that value of the Milford, Pennsylvania
improvements and parking is $280,000, which does not include includes the large
adjacent acreage lot. Wife is not making any marital claim as to the large
acreage from Husband’s father’s estate and it has not Yet been distributed. The parties
agree that the Petitioner’s 401k should be valued at $5,000, and that Wife’s medical
Bills totaling $6,000 as of May 1, 2012 are a joint marital debt.”

B. AMEND CONCLUSIONS OF LAW:

II Amend Conclusion of Law SPOUSAL MAINTENANCE to read: “Commencing
August 1, 2012, as and for permanent spousal maintenance, Respondent shall pay to
Petitioner the sum of $500.00 per month, payable for six months on the first day of the
month.
in two equal installments on the first and fifteen days of each month, until the
earlier of the following events:
(a) Death of Petitioner
(b) Death of Respondent
(c) Remarriage of Petitioner
(d) Further order of the Court

It is intended that this maintenance payable to Petitioner shall be included in Petitioner’s
gross income, pursuant to Section 71 of the Internal Revenue Code, and shall be
deductible by Respondent, pursuant to Section 215 of the Internal Revenue Code. The
Court retains jurisdiction to enforce Respondent’s obligation to pay maintenance to
Petitioner.”

IV Amend Conclusion of Law MARITAL AND NONMARITAL PROPERTY
AWARDED TO PETITIONER to read:

“1. The Beijing, China, condominium at Hualong Residence Community, Tongzhou
District, Building 48, Apt. 552.

2. All bank accounts, investment accounts, and retirement accounts in her name,
including but not limited to her Wells Fargo and Chinese Bank Accounts;

3. The parties joint US Bank accounts ending in numbers 3536 and 2032 at the
values set forth above in Finding 16.

4. All personal items in her possession;

5. Her 401k;

6. The parties Qwest/Century Link stock;

7. $50,000 which shall be paid by Respondent in successive equal monthly installments
of $10,000 each (with no interest thereon) commencing October 1, 2012. As an
alternative, Petitioner may elect instead to have assigned to her the loans owned by
Joyce Johnson, Joe Nelson, and Elizabeth Mora. If chooses the loans instead of the
$50,000 cash, she shall advise the court within 30 days after the Decree is entered.

8. Petitioner’s one-bedroom apartment which has not been disclosed near the Beijing
zoo.

V Amend Conclusion of Law MARITAL AND NONMARITAL PROPERTY
AWARDED TO RESPONDENT to read:

1. the non-marital Wunderlix Celluloid Prints;

2. The Port Wing, WI, improvements and land legally described as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

3. The Mercury Tracer;

4. All bank accounts, investment accounts, and retirement accounts in his name,
including but not limited to his Wells Fargo and US Bank checking.

5. The four-plex at 1702 Glenwood Avenue, Minneapolis, MN 55405, Hennepin
County, Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota;

6. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin
county, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

7. The improvements and land located at 100 Sawmill Sawkill Avenue, Milford,
Pennsylvania.

8. 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally
described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26,
Hennepin County, MN including any part or portion of any street or alley
adjacent to said premises vacated to be vacated;

9. 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally
described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying
North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin
County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that
part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision
No. 26, Hennepin County, Minnesota.

10. The following stocks/ securities: Gannett, Wells Fargo/Wachovia, Arbitron, US
Bank, Target, and Germany Fund/ Euro Equity Fund;

11. The following life insurance policy: AXA Life insurance account (zero balance).

12. The Petitioner shall assume $100,000 of the parties’ marital debt to be evidenced
by an unsecured, non-interest bearing note from Petitioner to Respondent in the same
amount. The note may be satisfied by payment of $60,000 from sale of Beijing
property or another source at any time in the next five Years.”

VII Amend Conclusion of Law DEBTS ASSIGNED TO PETITIONER to

read: “Petitioner shall pay and hold Respondent harmless from her medical bills except
for $3,000 in existing medical debt to be paid by Respondent by the end of 2012.

XIV Add Conclusion of Law RESPONSIBILITY FOR TAX ON SALE OF
BEIJING APARTMENT IN 2010 The wife will be responsible for filing an amended
return of the parties’ 2010 joint income-tax returns and for any additional tax or penalty
owed in relation to the gain on the sale of wife’s apartment in Beijing in 2010.

 

C. Grounds for proposed amendments

________________________________________________________________

Argument #1 In regard to amending the Findings of Fact, including Memorandum
discussion, with respect to the amount of marital assets and debts. (Findings of
Fact #11)

1. In point #18 of his Findings of Fact, the trial judge used incomplete or erroneous
information regarding marital debt based on the Petitioner’s Pre-hearing Statement.
The Petitioner’s Pre-hearing Statement did not list any debts in its balance sheet given
to Respondent. More complete information was given in testimony and exhibits offered
at trial.

2. The marital assets included the wife’s 401(k) retirement account worth $5,000 and
the real estate at 1715 and 1719 Glenwood Avenue worth $110,000, assigned to the
husband. The latter values and assignments were stipulated by the parties at the
conference with Judge Ruth Washington held on May 1, 2012. The marital debts, as
previously stated, totaled $324,212.70.

3. The statement made in point 19 of the Findings of Fact includes two factual errors:
First, the stipulated value of 1715 Glenwood Avenue (and 1719 Glenwood Avenue) is
$110,000, not $173,000 (which represents the mortgage debt). Second, the parties did
not agree that the property at 1708 Glenwood Avenue was “entirely marital”. It is a non-
marital property as evidenced by the deed and testimony given at trial. The property at
1715 Glenwood Avenue is marital, however.

Argument # 2 “ In regard to associating marital debt with the mortgages placed on
two Minneapolis properties.”

4. Testimony presented at trial made clear that the duplex at 1715 Glenwood Avenue
and the four-plex at 1702 Glenwood were not purchased with money raised from these
mortgages. The four-plex was purchased in 1992 (before the marriage) while the
duplex was purchased and renovated in 2002 and 2003 with funds raised from
borrowings on the Respondent’s two lines of credit with US Bank, sale of his premarital
stock and premarital real estate (a vacant lot at 1701 Glenwood Avenue). The
mortgage was placed in 2007. Even though the Petitioner’s attorney objected to the
submission of related exhibits, the Respondent explained the series of events related to
the two mortgages in a statement made during cross-examination. Essentially, these
mortgages allowed the parties to refinance existing debt on credit cards or lines of credit
at lower interest rates. It is therefore inappropriate to yoke the asset and debt mortgage
on the two properties. The mortgage debt is part of total marital debt. One of the
assets (1702 Glenwood Avenue) is non-marital property while the other asset (1715
Glenwood Avenue) is marital.

5. A statement made on page 20 of Judge Jensen’s decision, under division of
marital property, is factually incorrect: “”He (the Respondent) has also agreed to
assume the debt against the property (at 1702 Glenwood Avenue).” As Respondent’s
Exhibit 300 reveals, no such agreement was reached about assumption of debt.

6. Regarding the mortgage debt related to 1715 Glenwood, the judge’s order states
on page 21: “it is clear that husband favored his non-marital properties to the disservice
of the parties’ one marital parcel by not spreading the lien among the multiple parcels.”
It is true that $182,000 of existing debt was consolidated in a mortgage in 2007 on the
marital property at 1715 Glenwood Avenue. However, this statement implies intention
to burden the marital property selectively in anticipation of divorce. This implication is
untrue for several reasons: (1) The respondent did not anticipate divorce in 2007 nor
was he the one who filed for divorce four years later. (2) The non-marital property at
1702 Glenwood Avenue was similarly burdened with mortgage debt, albeit to a lesser
degree. (3) Given fee structures, appraisal costs, and other expenses related to
obtaining a mortgage, it is simply not economical to “spread the lien around among
several parcels” as the judge suggests ought to have been done. Due to the parties’ low
income-to-debt ratio, it was difficult to obtain debt refinancing and the Respondent was
lucky to arrange this when he did.

Argument #3 In regard to the division of marital property based on the amended
findings of fact.

7. Minnesota statute 518.58 requires the court to “make a just and equitable
division of the marital property of the parties without regard to marital misconduct, after
making findings regarding the division of the property ... The court shall also consider
the contribution of each in the acquisition, preservation, depreciation or appreciation in
the amount or value of the marital property, as well as the contribution of a spouse as a
homemaker.”

8. A manual issued by the Family Law Clinic states under Property Division:

a. “Generally, an equal division of wealth accumulated through the joint
efforts of the parties is appropriate on dissolution of a long term marriage. Miller v. Miller,
352 N.W.2d 738, 742 (Minn. 1984) But the division of marital property need not be
mathematically equal; it need only be just and equitable. Ruzic v. Ruzic, 281 N.W.2d
502 (Minn. 1979).

b. The manual also states: “Apportionment of marital debt is treated as a property
division.” Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) In this case, the
parties had $324,212.70 in marital debt compared with $115,000 in marital assets.

9. Despite the presumption of an equal property division, Minnesota statute 518.58
suggests that an unequal division of property might be allowed based on “the
contribution of each (party) in the acquisition, preservation, depreciation or appreciation
in the amount or value of the marital property, as well as the contribution of a spouse as
a homemaker.”

10. Testimony given at trial showed that, despite the wife’s attempt to assert a marital
interest in the husband’s non-marital properties through work allegedly done, the
husband was solely engaged in running the rental-property business; that he
contributed almost all the money used for the parties’ living expenses; that he gave his
wife and daughter Violet more than $100,000 during the marriage over and above what
was needed for household expenses including money for Violet’s college tuition; that the wife contributed little if any of her earnings from employment at Target or other money to household expenses; and that she sold an apartment in Beijing and gave the proceeds from the sale to her daughter shortly before filing for divorce. Also, according to testimony given by a witness, the wife spent approximately 20 percent of her time in
Minnesota (compared with 80% in China or northern Virginia). Her contribution to the
marriage as a homemaker was therefore less than what would normally be expected
from a stay-at-home wife.

11. Additionally, testimony showed that the husband sold non-marital property worth
$24,000 and used the proceeds from two non-marital life insurance policies, amounting
to $9,300 and $114,600, to pay debts incurred during the marriage. None of these funds
were commingled with marital funds. Had the Respondent not voluntarily paid some
expenses from his non-marital property, the parties’ marital debt would have been
$148,000 higher.

12. In summary, to assign 100 percent of the marital debt to the husband and none
to the wife cannot be considered “a just and equitable division of the marital property.”
An equitable division of the marital property based on an equal division would assign
$214,701.66 of the $324,403.32 total marital debt to the husband, and $109,701.66 of
this debt to the wife, assuming that the husband took the marital real estate at 1715
Glenwood Avenue and 1719 Glenwood Avenue valued at $110,000 and the wife took
her marital 401(k) account valued at $5,000. During testimony given at trial,
the Respondent suggested that a lien might be placed on the daughter’s town house in
Herndon, Virginia, considering that the wife’s sale of her Beijing property in 2010
provided funds for its purchase.

Argument #4 In regard to categories relating to dissipated assets and division of
non-marital property.

13. There is no legal category titled “combination dissipation/share of non-marital property” and therefore no provision in law for such a situation. Pertinent statutes relate
separately to dissipation of marital assets and to awarding non-marital property. The
judge should separate these two categories, issue findings of fact for each, and make
an award of property, if any, based on the appropriate laws.

Argument #5 In regard to the issue of dissipated assets.

14. According to lawyers.com: “The wasting or dissipation of assets involves the
frivolous and unjustified spending of assets by a spouse. There must be more than just
the mismanagement of property or spending in a way that's disapproved of by the other
spouse. Instead, there must be evidence of intentional misconduct.”

15. In this case, there was no intent to spend or dissipate assets. The Respondent
initiated virtually none of the transactions in question. Testimony presented at trial gave
evidence of several forged checks or unauthorized charges to his credit card. In some
instances, Respondent did report and receive reimbursement from the bank or credit-
card companies. In others, where he did not seek reimbursement, he made a
calculated decision aimed at asset preservation. Although Petitioner’s attorney
demanded it, to report Ms. Johnson’s crimes to the police would have accomplished little other than her possible incarceration. Repayment would then have become impossible.

16. The loan documents with Ms. Johnson which the Petitioner took without
permission from the Respondent’s files and submitted in Exhibit 12 are not evidence of
an attempt to hide assets but, to the contrary, to document that the monies advanced to
Ms. Johnson were loans rather than gifts.

17. The fact that the loans have not yet been repaid do not indicate that no attempt
was made to seek repayment. In today’s tough economy, money is sometimes hard to
collect. The Respondent declined to have Ms. Johnson prosecuted for the sake of
recovering small sums of money because he wished to maintain good relations and
obtain larger sums in the end.

18. The order related to dissipation of assets is, to a large extent, based on the
judge’s perception of Respondent’s evasive activity during the discovery process.
Footnote 12, on page 19, states: “Husband’s conduct during this litigation, particularly
his less than complete cooperation regarding discovery would allow me to infer
dissipation. See Hovelson v. Hovelson, C-6-99-1893 (Finance & Commerce 6/5/00),
2000 WL 687782 (Minn. App. 2000) wherein the trial court made a ‘reasonable’
decision, per the Court of Appeals, that Husband had dissipated assets during the
dissolution because ‘Husband continually refused to turn over the (requested)
documents, and only turned over partial, inaccurate and disorganized records when the
court ordered compliance with discovery requests.” This conclusion lacks a foundation
in evidence presented at trial. The judge has given no specific example of what he
considers “less than complete cooperation regarding discovery”. Perhaps this
conclusion is based on correspondence from Petitioner’s attorney in the court file. The
Respondent attempted to put some of the correspondence into evidence during the trial
but it was rejected.

19. The fact is that the Petitioner and her attorney had a complete set of photocopies
of the Respondent’s check registers in recent years as a result of the Petitioner
removing papers from his desk when he was temporarily living elsewhere under a no-
contact order. (See Petitioner’s exhibit #11) Perhaps lack of cooperation can be inferred from the
heated complaints which Respondent made regarding this procedure.

20. Despite having Respondent’s financial records, Petitioner’s attorney made no
attempt to identify improper transactions and produce a total of dollars misspent.
Instead, Petitioner’s attorney asserted that $135,000 of marital funds had been
dissipated. She ignored his request for a list of items coming up to that total. (See Petitioner’s
exhibit #19.) Respondent then did a review of his own and asserted that he could find
$86,000 in funds distributed to Ms. Johnson or her daughters. This hardly indicates
uncooperative behavior.

21. Minnesota statute 518.58 Subd. 1a states: “The burden of proof under this
subdivision is on the party claiming that the other party transferred, encumbered,
concealed, or disposed of marital assets in contemplation of commencing or during the
pendency of the current dissolution, separation, or annulment proceeding, without
consent of the claiming party, and that the transfer, encumbrance, concealment, or
disposal was not in the usual course of business or for the necessities of life.”

22. Bearing the burden of proof, the Petitioner has failed to provide sufficient
evidence that the Respondent intentionally transferred property to a third party in
anticipation of divorce or with the purpose of concealing property in a divorce
proceeding. The Petitioner did not even attempt to make such an argument; the
dissipation issue was raised mainly to smear the Respondent with the marital-
misconduct allegation. At worst, the Respondent was guilty of trusting that his ex-wife
would repay the borrowed money.

23. It is also an error to assume that the money allegedly dissipated to Ms. Johnson
came from marital funds. The Petitioner alleges, on the basis of Exhibit 19, which
contains an email from Respondent dated December 5, 2011, that Respondent admits
to having dissipated $89,000 in assets. However, the Respondent in February 2010
became the beneficiary of a life-insurance policy worth $114,000. This was the
Respondent’s non-marital property. That insurance money, dispersed during the next
Year, more than covers the $89,000 allegedly dissipated to Ms. Johnson. Respondent’s exhibits 320 and 392, to which the Petitioner objected, give evidence of the life-insurance policy and of funds dispersed at several times from the related checking account.

Argument #6 “In regard to the wife’s sale of her Beijing apartment in September
2010 and subsequent transfer of the proceeds to her daughter

24. Shortly before September 26, 2010, the Petitioner sold an apartment in Beijing
for $100,000 without her husband’s knowledge or permission. The bulk of the money
was transferred from Petitioner’s account at the Bank of China into her daughter’s
checking account at PNC Bank in northern Virginia on October 18, 2010, where much of
it was used for a down payment on the daughter’s purchase of a $320,000 town house
in Herndon, Virginia, and the rest to help pay down the daughter’s student loan.
Despite false testimony given by the daughter at trial, the respondent first learned of this
transaction on October 17, 2010 in Herndon, Virginia, when he was asked to fly to
Virginia to help evaluate town houses which the daughter wished to purchase. (See
Petitioner’s exhibits 1, 2, and 9.)

25. The Petitioner filed for divorce on March 4, 2011. In January or February of
2011, Petitioner sent more than a dozen boxes or suitcases stuffed with clothing or
other personal belongings from Minneapolis to northern Virginia. In view of the time
periods involved, it seems likely that both the apartment sale and the transfer of
other property represent transfer of assets in anticipation of divorce.

Argument #7 “ In regard to the responsibility for income taxes on the gain
associated with the sale of the wife’s Beijing apartment

26. The capital gain on the sale of the wife’s apartment in Beijing in 2010 was not
reported on the couple’s joint income-tax return for 2010. The judge should issue a
decision assigning responsibility for this omission to the wife for two reasons:

27. First, the wife agreed to accept this responsibility at the settlement conference
conducted by Judge Washington on May 1, 2012. As explained in the motion for a new trial, the court clerk, Pearl Turner, improperly arranged to have the agreement reversed. When the Respondent attempted to raise the issue of the unpaid taxes at trial, the judge would not allow discussion of this subject because it pertained to topics raised at a settlement conference. (See Respondent’s Exhibit 300.) Second, the Respondent has no information about the original cost of the sold apartment in Beijing which would be needed to calculate the capital gain. It would be more convenient for the Petitioner to calculate and assume responsibility for the tax liability than the Respondent especially if the filing must be coordinated with her daughter.

Argument #8 In regard to the wife’s second unsold apartment in Beijing

28. The Petitioner owns or has lifetime use of another apartment in Beijing besides
the one sold in September 2010 and besides the one valued at $200,000 or more which
she disclosed as a non-marital asset. Although the Petitioner failed to acknowledge its
existence, this second apartment is mentioned in Petitioner’s response to Respondent’s
Request #17, if only in denial. (Exhibit originally numbered E-118.) The number used when it was
accepted into evidence is unknown.) Also, it is mentioned in an email sent from
Petitioner’s attorney to Respondent’s then attorney, Frederick Smith, dated 4/14/2011
9:56 p.m. (See Respondent’s exhibit 369.)

29. The apartment discussed here is neither the apartment sold in September 2010
(since it would no longer be a property issue in April 2011) nor the “big apartment” which
the Petitioner still owns (since the Petitioner bought this apartment for cash. See
Petitioner’s response to Respondent’s request #16.) The Respondent slept in all three
apartments numerous times during the marriage. This is the one, near the Beijing Zoo,
where the Petitioner put in a new sink about three years ago.

Argument #9 In regard to the relative degrees of hardship experienced by the
Petitioner and the Respondent

30. The trial judge’s order requiring the Respondent to pay the Petitioner $500 per
month (twice a month) for permanent spousal maintenance is based on the judge’s
stated “discretion to force the parties to share the economic hardship.” (page 18)
The judge’s argument appears to be based upon the parties’ respective “living
expenses” (or monthly budgets) in the Petitioner’s and Respondent’s Prehearing
Statements. The Prehearing Statements show that the Petitioner reported a need for
$2,031 in monthly living expenses while the Respondent reported $1,920 for needed
expenses, omitting interest expense. The judge has properly questioned the
Petitioner’s payment of rent to her daughter considering that the Petitioner supplied
money for the down payment on the town house in which she lives.

31. Several other of the Petitioner’s reported needs seem questionable. For
instance, the Petitioner, who weighs less than the Respondent, said that she needed
$450 per month for food while the Petitioner said he needed only $100 per month.
According to the U.S. Department of Agriculture’s Economic Research Service (as
reported by the Agricultural Marketing Resource Center) in 2010: “A single female, age
19-50 spent $36.20 a week on the thrifty model and $71.80 a week on the liberal food
cost plan.” To reduce this number to $54 per week ($216 per month), which is the average between the two figures, would knock $234 per month off the wife’s food
claim. Petitioner also claims to need $280 per month for a transportation allowance
despite enjoying free air travel on United Airlines because her daughter was a flight
attendant. Respondent, without this benefit, claims to need only $160 per month for
transportation, which is also the number Petitioner used in her Prehearing Statement.
Another $120 per month could be saved here. One would conservatively estimate that,
apart from the rent, the Petitioner’s stated monthly living costs are $354 ($234 + $120)
too high.

32. If this adjustment is taken into consideration, the wife’s “shortfall” in money for
needed living expenses becomes different from that in the calculation on which the
spousal-maintenance award was based. The Petitioner’s total monthly expenses in her
Pre-hearing statement were $2,031. From this, one would deduct $800 for rent not
needing to be paid, $234 for excessive food claim, and $120 for excessive
transportation claim. This leaves $877. In her Exhibit #5, Petitioner reports a monthly
income of $400. This leaves a shortfall of $477 rather than $1,000. Since the Petitioner
owns two apartment in Beijing which might be rented if she lives in the United States,
the entire shortfall might easily be covered from that source. There would then be no
“hardship” needing to be “shared” with the Respondent.

33. However, the main reason against the spousal maintenance award to the
Petitioner is that the Respondent, if required to assume all the marital debt, would be
required to pay $2,061.88 in interest to his creditors as disclosed at trial. Interest was
not reported in the Respondent’s Prehearing Statement because the debt determination
had not yet been made; however, the fact that the monthly interest exceeded the
Respondent’s monthly retirement income from Social Security and a state pension was
mentioned in testimony given during the trial. Also, the evidence shows that the
Respondent has chronically lost money in his rental-property business so no relief can
be expected from that quarter.

34. If one backs out the $268.36 in monthly interest associated with the
Respondent’s $845.00 monthly mortgage payment and the $986.26 of interest
associated with the mortgage on the duplex which are included in the rental-property
business (on the false theory that the rental-property business breaks even), it leaves
$807.27 in other monthly interest. This needs to be added to the Respondent’s monthly
budget, bringing monthly expenses up to $2727.20. Even without the need to pay
spousal maintenance, the husband would be $770 short of his $1958 monthly
retirement income. If hardship must be equally shared, it would require a monthly
payment from the wife to the husband. Otherwise, the husband would be required to
keep sinking further into debt whose repayment would require eventual sale of his non-
marital real estate.

35. The judge acknowledges (on page 15) that “there is no statue or case law of
which I am aware that requires one party to sell assets in order to pay maintenance.”
Nevertheless, his decision to force the Respondent to dip into his non-marital assets is
based upon what he perceives to be the Petitioner’s financial “hardship”.

36. The judge wrote (on page 15): “Although husband lacks sufficient retirement and
social security income to meet his needs and still contribute to wife’s needs in significant
amount, it remains possible that his real estate holdings generate enough positive cash
flow to fund a maintenance award.” This hopeful possibility is negated by the hard
evidence of six years of income-tax returns. The judge tends to dismiss the reported
losses in favor of cash-flow results that show depreciation being added back. This
procedure is unjustified if newly capitalized items during a year exceed the depreciation
taken on the tax return in the same year. No testimony was given in that regard.

37. What are the relative positions of Petitioner and Respondent with respect to
ability to pay current expenses? Testimony was given in Respondent’s opening
statement that he had initially engaged the services of an attorney but was forced to
represent himself when his money and credit were drained. The Petitioner meanwhile
continued to engage the services of her attorney at $150 an hour. The Respondent
made several serious offers to settle while the Petitioner consistently held out for more.
If the Petitioner had been under a greater degree of financial stress than the
Respondent, she would have been equally or more concerned about the legal Bills that she was incurring in her refusal to settle over more than a year’s period.

Argument #10 In regard to legal justifications for invading non-marital property

38. The statute authorizing invasion of non-marital property in a divorce is 518.58,
subd. 2: “If the court finds that either spouse’s resources or property, including the
spouse’s portion of the marital property as defined in section 518.54, subdivision 5, are
so inadequate as to work an unfair hardship, considering all relevant circumstances, the
court may, in addition to the martial property, apportion up to one-half of the property
otherwise excluded under section 518.54, subdivision 5, clauses (a) to (d), to prevent
the unfair hardship. If the court apportions property other than marital property, it shall
make findings in support of the apportionment.”

39. This motion is related to to issues raised in the previous motion. The statute
allows invasion of marital property where the division of property otherwise ordered
would work “an unfair hardship” on a party, specifically taking account the
apportionment of marital property. In this case, however, the judge has assigned 100
percent of the marital debt - $324,400 - to the Respondent and none to the Petitioner. It
can hardly be argued that this arrangement relating to the division of martial property
creates an unfair hardship for the Petitioner that would justify invading the Respondent’s
non-marital property.

40. In its chapter titled “Property Division”, a publication of the Family Law Institute
states: “Invasion of non-marital property occurs only in extraordinary circumstances.
See Hogsven v. Hogsven, 386 N.W.2d 419 (Minn. App, 1986). There must be findings
of unfair hardship to support the invasion. Roel v. Roel, 406 N.W.2d 619 (Minn. App.
1987); Graeber v. Graeber, 392 N.W.2d 589 (Minn. App. 1986) ... The usual
circumstances are where one spouse would be left destitute, where the nonmarital
asset represents the entire estate, etc. Faus v. Faus 319 N.W.2d 408 (Minn. App. 1987);
Hanson v. Hanson, 378 N.W.2d 28 (Minn. App. 1985) ... The contributions one spouse
has made to the other’s nonmarital property may also contribute to a finding of unfair
hardship. Wilson v. Wilson, 348 N.W.2d 357 (Minn. App. 1984). Also, contributions to
the other spouse’s family may be considered. Arundel v. Arundel, 281 N.W.2d 663
(Minn. App. 1979).

41. It would seem that few if any of the above-mentioned conditions that justify
invading non-marital property apply to this case. The marriage dissolution has not
created unfair hardship when, after 11 years of marriage, the wife has acquired a
401(k), she retains non-marital real-estate conceded to be worth $240,000, her
daughter has obtained a college education from a private college and an expensive
townhouse, and she assumes none of the marital debt. She is not left destitute in this
situation. Neither does the husband’s non-marital property represent the entire estate.
Despite efforts to argue otherwise, the wife made little, if any, contribution to the
husband’s non-marital property. She made no contributions to the husband’s family and
contributed few, if any funds, to the parties’ household expenses. The husband has a monthly shortage of funds to meet his living expenses while the wife does not.

42. In short, there is no reasonable basis for assigning $50,000 worth of the
Respondent’s non-marital property to the Petitioner. The only way to justify this is to
create a legally ambiguous category called “combination dissipation/share of non-
marital property” in which judicial discretion replaces judgment based on application of
law.

Argument #11 “In regard to the sufficiency of evidence to justify property transfer
based on the wife’s health condition, ability to speak English, and prospects for
future employment

43. The award of non-marital property is based on certain understandings of the
wife’s condition that were not supported by evidence presented at trial. This statement
appears on page 23 of the judge’s memorandum: “Wife is in poor health and suffers
from recurrent cancer among other problems; is Chinese with little command of the
English language; has limited work history and the record does not reflect job skills that
would warrant employment at a significant salary should her health suddenly improve;
and has only a modest retirement income from China. In short, her prospects of an
improved economic status are extremely limited. That reality, coupled with husband’s
inability to pay her significant maintenance, portend a near destitute existence, unable
to meet her basic needs on her own, with no legitimate prospects of acquiring additional
capital assets.”

44. It is true that the wife does suffer from recurrent cancer. However, it is by no
means clear that her current state of health is poor since she appears to be in normal
health. She has refused to disclose her medical records or give related information
to her husband.

45. Other than the fact that the wife communicated through an interpreter during the
trial, the judge has no evidence to support his assertion that the wife has “little
command of the English language.” She and her husband conversed quite adequately
in English when they first met in January 2000. Respondent has a sound recording of
his wife speaking English with a 911 operator in January 2012 while she interrupted
his call.

46. The judge also has no evidence whatsoever to support his claim that the wife
“has limited work history and the record does not reflect job skills that would warrant
employment at a significant salary should her health suddenly improve.” No testimony
or evidence was offered regarding her past positions in China and possible job
prospects there, or, for that matter, her three-year stint at Target. What is on the record
is that the wife is fifteen years younger than the husband and she has more recent job
experience. If she is truly unable to work, she would be eligible for government
assistance. The husband, already on Social Security, would not be eligible.

47. The reality is that the wife’s economic well being is intimately connected with that
of her daughter Violet, whom she raised as a single parent. They share use of both a
checking account and the daughter’s credit card. The daughter has a high-paying job
with the federal government. The daughter’s paternal grandfather is a multi-millionaire,
now in his 80s. Her uncle is the billionaire owner of a chemical company in Germany.
Her biological father lives in California. There is evidence that the grandfather has
recently given Violet money to help purchase the townhouse (Respondent’s exhibit 369,
email from Petitioner’s attorney to James Smith, 4/7/11 2:32 p.m. See also Petitioner’s response to Respondent’s Request #28.) While gifts or inheritances from relatives are uncertain, the extraordinary wealth of Violet’s paternal relatives belies the conclusion stated on page 23 that “her (Petitioner’s) prospects of an improved economic status are extremely limited.”

48. There was insufficient time during the trial to inquire into these matters. The
Conclusion of Law related to them is not supported by the available evidence.

Argument #12 In regard to the order requiring the Respondent to pay Petitioner
spousal maintenance for an indefinite period of time

49. Unless the Petitioner exhibits a greater degree of financial hardship than the
Respondent or her prospects for future income are significantly less encouraging, there
is no justification for spousal maintenance to be paid by the Respondent. The argument
about making the parties share (equally) in the hardship is based on erroneous
assumptions. (See arguments in Argument #9.) The conclusion regarding the
Petitioner’s poor prospects for future employment and income lacks a foundation in
facts presented at trial. (See arguments in Argument #11.) If the Respondent is to
assume all the marital debt, the resulting interest payments will create a permanent
deficit in his monthly budget. (See arguments in Argument #9.)

50. If the judgment further requires the Respondent to sell or financially burden his
apartment building at 1708 Glenwood Avenue to pay the Petitioner $50,000 in cash
starting in October 2012, it will likely destabilize his rental-property business since that
apartment building is his only income-producing property. At age 71, it is unlikely that
Respondent will find any other employment. (The wife is 15 Years younger.) This is not
a good time to be selling property in north Minneapolis or to be trying to obtain a
mortgage loan against commercial property.

51. That leaves the possibility of selling the Milford property to free up roughly $450
per month so that the $500 in permanent spousal maintenance can be paid. This was a
house built by the Respondent’s great-great grandfather where many family heirlooms
are kept. His parents, two brothers, and relatives going back several generations are
buried in the Milford cemetery. He himself has a grave plot reserved there. He may well
retire to Milford after he is too old to work in the rental property business. In any event,
the requirement to pay spousal maintenance to the Petitioner is, in fact, unfairly forcing
the Respondent to sell non-marital property.

52. In that case, the question is why the trial judge did not instead require the
Petitioner to sell one or her two remaining non-marital apartments in Beijing.
Considering the Chinese cost of living, she could live comfortably on the proceeds from
the property sale for years and continue to have another place in Beijing to live.
Alternatively, if she does not plan to live in China, she could sell both apartments and
have a nest egg of more than $300,000 (not considering taxes) for living in the United
States.

Argument #13 In regard to a Domestic Abuse no-contact order

53. Point 10 of the Findings of Fact states: “The parties are subject to a Domestic
Abuse No Contact Order with provisions allowing contact, Hennepin County Court File
27-CR-11-XXXX.” In fact, Judge Mary Vasaly cancelled the no-contact order associated
with this case on March 18, 2011. It is unclear what a no-contact order means if there
are provisions allowing contact. There was also a no-contact order associated with a
second arrest resulting from a false allegation of domestic assault on January 24, 2012,
coordinated with this divorce case. However, those assault charges were dismissed by
the prosecutor on March 19, 2012.

Argument #14 In regard to other factual errors of fact in the findings of fact

54. The judge’s Findings of Fact and attached Memorandum contain a number of
factual errors or misinterpretations.

a. First, the parties have never had a joint account at US Bank with account numbers
ending in 3556 or 2032 or anything else. The respondent has maintained several
accounts at US Bank in his name alone while the petitioner banked alone in her name
at Wells Fargo.

b. Second, the parties no longer own stock in Qwest/Century Link. It was sold in 2003
to pay Bills.

c. Third, the respondent owns property at 100 Sawkill Avenue in Milford, Pennsylvania,
not 100 Sawmill Avenue.

d. Fourth, the respondent no longer owns stock in Arbitron, Target, or Germany Fund/
Euro Equity Fund or any equity in an AXA Life Insurance account.

e. Fifth, the wife’s disclosed apartment building in Beijing is valued at $240,000
according to her attorney’s latest statement, not $200,000.

f. Sixth, Linda Davis, the tenant in Milford, currently pays $410 per month, not $350
per month as in the lease dated 2003.

g. Seventh, Wachovia went out of business during the financial crisis of 2008. Its
business was acquired by Wells Fargo. Respondent did not own any Wells Fargo stock
prior to the marriage. Its ownership came about after the dissolution of Wachovia.

h. Eighth, the trial judge claimed that respondent has been “diverting” money from
property earnings to retain the money-losing house in Milford, Pennsylvania. In a normal
year, the excess of expense over revenues for the Milford house is around $5,400. Why
was not the Respondent also “diverting” money in keeping the duplex, which loses over
$11,000 per year? The answer is that there are reasons other than “diverting” assets in
a marriage dissolution for retaining such properties. It should also be noted that an
exhibit presented and accepted at trial showed that the respondent gave the petitioner
and daughter Violet more than $100,000 during the marriage, above and beyond their
normal living expenses. This, too, had a larger impact on household finances than the
Milford diversion.

i. Ninth, the judge stated “he (the husband) was not forthcoming with the information
sought by wife during discovery, which was necessary for proper preparation of cross-
examination.” The reference is unclear. If the statement refers to the appraisal of 1702
Glenwood Avenue, it is true that the respondent questioned the need for an appraisal in
emails exchanged with the petitioner’s attorney considering that this was non-marital
property and non-marital property would not normally be redistributed. On the other
hand, he fully cooperated with the appraiser once this work was ordered. If this
statement refers to discovery in general, there is much evidence to suggest
that the Respondent cooperated to an extraordinary degree with the Petitioner and her
attorney while receiving little cooperation in return. However, the trial record does not
reflect this since the Respondent had inadequate time to make his case. Presently, the
record contains insufficient evidence to support the judge’s statement that the
Respondent was not “forthcoming” in production of evidence which, in turn, supports a
decision to transfer property from one party to another.

D Basis

This motion is made in accordance with Rule 52.32, Minnesota Rules of Civil Procedure.

 

Part II Motion for a New Trial and Stay of Execution

The respondent, Chester Mack, moves the Court for an order as follows:
 
1. Granting a new trial in the divorce proceedings between Rose Mack and 
Chester Mack, in whole, or limited to fact finding regarding any or all of the
following:

a. Petitioner’s living expenses including food and transportation;
b. Existence of a second apartment in Beijing, not previously disclosed by Petitioner;
 c. Petitioner’s ability to derive income from renting her property in China;
 d. Petitioner’s financial situation and future employability;
e. The parties’ debt at the outset of the marriage, and the net amount of marital debt;
f. The extent, if any, of alleged dissipation of assets;
g. The parties’ lack of cooperation regarding discovery;
h. Petitioner’s English speaking ability;
i. The Petitioner’s time spent away from Minneapolis;
j. The Petitioner’s personal network and her ability to acquire money from various sources;
k. The evidence does not justify decisions;
l. Such other topics as the Judge determines require additional fact finding.

2. Granting a stay of execution of Conclusions of Law, IV Marital and Non-Marital
Property Awarded to the Petitioner, 7. Payment of Respondent’s Non-Marital Property

 
BASIS FOR A NEW TRIAL

a. Minnesota Rules of Civil Procedure, Rule 59.01 lists the grounds for a new trial.

b. Rule 59.01 (a) states: “Irregularity in the proceedings of the court, referee, jury, or
prevailing party, or any order or abuse of discretion, whereby the moving party was
deprived of a fair trial;” 

c. The following irregularities occurred:

1. The time allowed for testimony and witnesses during the two-trial greatly favored
the petitioner and disadvantaged the respondent. The Respondent calculates that he
and his witness consumed two and a half hours of trial time while the petitioner and her
witnesses had nine hours.

2. The respondent’s turn to offer testimony did not even begin until 11 a.m. on the
second day. No time was allowed for closing statements. When the respondent
complained of insufficient time to present testimony, the judge gave him the final ten
minutes but then abruptly cut him off and ended the trial when respondent offered
certain testimony.

3. The severe time limitation did not allow the respondent to ask any questions about
the petitioner’s career background, health, and financial resources so that the judge
based his decisions about spousal maintenance and division of non-martial property on
erroneous assumptions made in the absence of information. The lack of sufficient time
to present the Respondent’s side of the case had a significant impact on the evidence
available for the judge’s decision.   

4. The trial judge’s Memorandum accompanying his decision states that the two-day
trial was adequate for the case but that the parties’ failure to comply with certain of
referee’s requirements. He especially criticized the Respondent for failing to number
exhibits properly and provide an exhibit binder.

5. It is true that the Respondent’s exhibits were not numbered in accordance with
referee Raleigh’s instructions. The Respondent did not deliberately disobey the
numbering instruction but was unaware of it when he prepared his exhibits. The reason
for this was that referee Raleigh’s trial order was mailed to the Respondent’s attorney,
Frederick Smith, who soon afterwards withdrew from the case. Smith mailed the
trial order to the Respondent, who took a look at it before filing the letter with
Smith’s other correspondence, not remembering the numbering requirement seven
months later.

6. Instead of the harsh approach that he took, the trial judge might have allowed the
respondent to renumber the exhibits on the spot by adding two digits to each or else he
might have accepted the exhibits as is. Respondent had numbered his exhibits E-1,
E-2, etc. (E for exhibit) which were clearly differentiated from the petitioner’s numbered
exhibits.

7. A factor which contributed to the length of the trial and to general confusion was
the unsystematic scheme proposed for renumbering. For example, exhibit E-8 became
exhibit 208, exhibit E-13 became exhibit 202, exhibit E-15 became exhibit 391, and
exhibit E-17 became exhibit 133.

8. The Petitioner’s attorney took advantage of the judge’s instruction that respondent
renumber his exhibits beginning with 136 during the lunch break of the second day and
show them to her for stipulated submission. She took much time in deciding which of
the respondent’s exhibits to accept. In addition to twenty minutes available at lunch, her
decision-making process consumed at least forty-five minutes of precious trial time.

9. While deciding which of the Respondent’s exhibits to accept, the Petitioner’s
attorney placed the renumbered, rejected exhibits one at a time on the table in front of
Respondent in great disarray so that the Respondent was unable to locate documents
which he wished to introduce into evidence when it was his turn to testify.

11. Respondent did not have an exhibit binder because he again was unaware of
that requirement. However, he did bring a manila folder for the court including copies of
all exhibits and a table of contents (in addition to his own and the other attorney’s
copies). This was not presented because of the problem with numbering exhibits.

12.. The trial judge blamed the Respondent for contributing to insufficiency of time
during the trial by spending too much time on cross-examination. He wrote on page 12:
“In addition to the foregoing efforts, the record will reflect that on numerous occasions I
advised husband that his cross examination was taking way too long and yielding little
of substance. I urged him to reserve more of his allotted time for his own testimony. He
ignored my attempts to help.” The word “ignored” is too strong. The Respondent’s
recollection, without having access to the transcript, is that he did promptly stop his
cross examination of Petitioner after hearing the judge’s initial comments.

13. On the other hand, it is clear that Respondent needed to spend time on cross-
examination to avert a situation of grave danger to his case: Without much warning or
supporting exhibits, the Petitioner’s attorney sent three witnesses to the witness stand
to testify that the Petitioner had spent a large amount of time working on the
Respondent’s non-marital real-estate properties so as to justify a large marital
component.

14. Rose Mack’s Balance Sheet presented to Judge Ruth Washington on May 1,
2012, claimed that, for this reason, $120,000 of the $160,000 value of the four-plex at
1702 Glenwood Avenue was marital, $160,000 of the $285,000 value of the apartment
building at 1708 Glenwood Avenue was marital, and $40,000 of $285,000 value of the
Milford property was marital. This was all untrue. The Petitioner, while claiming to have
done $160,000 worth of work, had hardly set foot in the apartment building. The
Respondent’s witness, his maintenance manager, testified that he had only seen her
once in that building in over ten years.

15. In the end, the trial judge acknowledged that the Petitioner’s claims were without
merit. However, the Respondent at the time did not know how much counter evidence
was required to establish that fact. He believed that he could not afford to let the
Petitioner’s false testimony go unchallenged.

16. The Respondent attempted to introduce evidence into the trial from the tenant in the
Milford house, Linda Davis, regarding Petitioner’s role in conserving or improving that
property. The judge would not allow a notarized letter from Davis to be introduced into
evidence but he did allow a telephone interview to be conducted. The Respondent
gave the law clerk, Pearl Turner, the cell-phone number of Ms. Davis. When the clerk dialed that number, she informed the court that the power was off. The Respondent called Ms. Davis the next morning to ask about this. Ms. Davis, whom the
Respondent considers to be unusually honest and reliable, said that she had made sure
that the power was on for the entire day. She had used an alternative land-line phone
for her normal business and personal calls. Of course, Ms. Turner might have
innocently dialed the wrong number.

17. The two-day trial period was inadequate because referee Raleigh’s law clerk,
Pearl Turner, engaged in inappropriate behavior in having a point of agreement removed from the Partial Settlement Agreement reached by the parties during the conference with Judge Ruth Washington on May 1, 2012. The Petitioner had
agreed to Point 9 of the agreement which read: “Wife will be responsible for any tax
liabilities or debts related to the sale of her Beijing apartment in 2010.” Judge
Washington,who had negotiated the agreement, presented a typed list of settlement points to the parties for signature and then left the room. In the judge’s absence, attorney Su-Mei Kang Ming falsely told the law clerk, Pearl Turner, that the
Respondent had known about and consented to the sale of Petitioner’s apartment.
When the Respondent denied that claim, the law clerk told him to be quiet and sit down.
She then went into a back room to confer with Judge Washington, who agreed that point 9 of the agreement should be stricken. Ms. Turner returned to the court room with the amended agreement which she asked both parties to initial. The Respondent complied believing this to be the package of agreements authorized by the judge. (See attached Exhibit #300.)The failure to decide the question of tax liability for sale of the Beijing apartment consumed a significant amount of trial time, especially during Violet Mack’s testimony and cross-examination.

f. The court employed two Chinese-language interpreters to handle testimony from
Petitioner and related cross-examination. While the Petitioner was being cross-
examined, a witness for the Respondent sitting in the visitor’s section noticed that one
of the Chinese-language translator was passing written notes to the other. The judge
also said: “I can see what you’re doing.” The note, read in court, seemed to be
coaching the Petitioner on answers that she might give in response to the questions.
Also, the Petitioner used the process of translating slowly from English to Chinese and
then from Chinese back to English to great advantage in consuming trial time.

Rule 59.01 (b) states: “Misconduct of the jury or prevailing party”.

d. The following misconduct occurred, both before and during the Trial:

    Before the Trial: 
                                             
1. The Judge’s memorandum states (page 12, emphasis added): “On a number of
occasions wife attempted to interject fault into the proceedings, charging husband with
having an affair and fathering a child with another woman.  This improper conduct
started with her discovery responses…  Instead of reigning in her client, wife’s counsel
signed the discovery responses that improperly interjected fault...  As far as I could
glean, counsel did nothing to restrain her client from proceeding ahead in this manner.”

2.        The Judge’s memorandum states (page 13-14, emphasis added):
“Because I had not presided over this case from the beginning, I did not have the
opportunity to watch the case unfold and thus gradually develop an opinion regarding
which party had been the most obstreperous and which party had been pursuing the
most unreasonable agenda.  However, I bring over eleven years of full-time Family
Court experience to the table.  Based on that cumulative experience, I came away from
the trial with a very firm conviction that a number of positions advanced by wife herein
were about as weak and unjustified as I have encountered during my many years as a
Family Court judge.  In my opinion, her unjustified claims drove this litigation, blocked a
reasonably prompt settlement, and unreasonably contributed to the cost and length of
the proceeding.
 
3 The Judge’s memorandum concludes his section on Procedural Background with
this statement (page 14, emphasis added): “… such delays pale in comparison to the
main litigation drivers that I explained above: wife’s unreasonable and unjustified
positions on big-ticket items that made settlement impossible and a trial inevitable.

     At the Trial:                                  

4. The Judge’s memorandum states (page 12-13): “Wife also contributed to the difficult trial. On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman … When wife attempted to replicate her discovery responses and interject fault at trial, I made it clear that I would not entertain such testimony.  Wife was not deterred and adduced Respondent’s alleged extra-marital affairs on more than one occasion.  I
mention this not just because the topic was improper, but because husband was
unrepresented, obviously upset with the topic, became distracted, and it veered him off
task.  As far as I could glean, counsel did nothing to restrain her client from proceeding
ahead in this manner.  Wife also repeatedly failed to confine her answers to the matters
raised by the questions.  Time and time again she went far beyond the questions,
vented her anger at husband, and otherwise provided non-responsive information that
riled husband and shifted his focus off task.”

e. Rule 59.01(g) states that a new trial may be granted if the verdict, decision, or
report is not justified by the evidence.

1. The evidence does not justify invasion of the Respondent’s non-marital assets.
2. The evidence does not justify the division of marital assets.
3. The evidence does not justify spousal maintenance, especially the failure to
recognize wife’s Chinese income and possibility of gaining rent from her Chinese
properties.

PART III BASIS FOR A STAY OF EXECUTION


 
a. Minnesota Rules of Civil Procedure, Rule 62.01 provides that: “In its discretion and
on such conditions for the security of the adverse party as are proper, the court may
stay the execution of or any proceedings to enforce a judgment pending the disposition
of a motion for a new trial made pursuant to Rule 59, or of a motion for relief from a
judgment or order made pursuant to Rule 60, or of a motion for judgment as a matter of
law made pursuant to Rule 50.02, or of a motion for amendment to the findings or for
additional findings made pursuant to Rule 50.02.”

b. The argument for the stay is as follows:

1. The order for the Respondent to begin paying $10,000 per month for five
consecutive months starting in October acknowledges that the Respondent does not
have the resources or credit to pay this money unless he sells or mortgages his non-
marital property. The Judge states on pages 23 and 24 of the Memorandum: “The
record does not support a finding that husband has substantial, liquid non-marital
assets. Any decision to award wife a percentage of his non-marital estate necessarily
must contemplate that he will be unable to pay such funds when judgment is entered.
In order to satisfy such an award, husband likely will need to sell a portion of his non-
marital real estate or borrow money secured by that real estate.”

2. This order does not comport with current business realities. Apartment buildings
in north Minneapolis cannot be sold on ten weeks’ notice without slashing the price to
“fire sale” levels in an already depressed market. It is unjust to impose this requirement
upon the Respondent.

3. With respect to placing a mortgage, it was difficult enough to find a lender for
commercial property five Years ago when the parties’ income-to-debt ratio was more
favorable than it is today and the banks were more willing to lend. Again, ten weeks’
notice is inadequate to raise the cash to meet the court-ordered payments.

4 The prospect of selling property in a small town such as Milford, Pennsylvania, or
finding mortgage money in that market would be even more difficult than in Minneapolis.

This motion is brought pursuant to Minnesota Rules of Civil Procedure 62.01.

The motions brought forward in this filing are based on the files, exhibits, and minutes of
the Court and on the attached Affidavit of Respondent, Chester Mack.

signature page

 

_________________________________ Dated: __________________

Chester Mack
Respondent

1702 Glenwood Avenue
Minneapolis, MN 55405

612-374-XXXX

*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***
*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***

(27) Respondent’s Motion for a Stay of Execution (August 28, 2012) See divorcebook.html, chapter 38.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Rose Fen Mack
(Plaintiff/Petitioner) Case No. 27-FA-11-XXXX

v.

Chester Arthur Mack Affidavit of Chester Mack, Jr.
(Defendant/Respondent)

BASIS FOR A STAY OF EXECUTION
 

a. Minnesota Rules of Civil Procedure, Rule 62.01 provides that: “In its discretion and

on such conditions for the security of the adverse party as are proper, the court may

stay the execution of or any proceedings to enforce a judgment pending the disposition

of a motion for a new trial made pursuant to Rule 59, or of a motion for relief from a

judgment or order made pursuant to Rule 60, or of a motion for judgment as a matter of

law made pursuant to Rule 50.02, or of a motion for amendment to the findings or for

additional findings made pursuant to Rule 50.02.”

The argument for the stay is as follows:

1. The order for the Respondent to begin paying $10,000 per month for five

consecutive months starting in October acknowledges that the Respondent does not

have the resources or credit to pay this money unless he sells or mortgages his non-

marital property. The Judge states on pages 23 and 24 of the Memorandum: “The

record does not support a finding that husband has substantial, liquid non-marital

assets. Any decision to award wife a percentage of his non-marital estate necessarily

must contemplate that he will be unable to pay such funds when judgment is entered.

In order to satisfy such an award, husband likely will need to sell a portion of his non-

marital real estate or borrow money secured by that real estate.”

2. This order does not comport with current business realities. Apartment buildings

in north Minneapolis cannot be sold on ten weeks’ notice without slashing the price to

“fire sale” levels in an already depressed market. It is unjust to impose this requirement

upon the Respondent.

3. With respect to placing a mortgage, it was difficult enough to find a lender for

commercial property five years ago when the parties’ income-to-debt ratio was more

favorable than it is today and the banks were more willing to lend. Again, ten weeks’

notice may be inadequate to raise the cash to meet the court-ordered payments.

4 The prospect of selling property in a small town such as Milford, Pennsylvania, or

finding mortgage money in that market would be even more difficult than in Minneapolis.

5. Immediate satisfaction of the judgment by October 1, 2012, would require actions

to be taken at a substantial cost which could not be reversed if the order is amended.

This motion is brought pursuant to Minnesota Rules of Civil Procedure 62.01.

 

The motions brought forward in this filing are based on the files, exhibits, and minutes of

the Court.

signature page

Chester Mack
Respondent

1702 Glenwood Avenue
Minneapolis, MN 55405

612-374-XXXX

notarized 28th day of August 2012

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(28) Petitioner’s Motion and Affidavit in response to Respondent’s Motion for a Stay of Execution (September 6, 2012) See divorcebook.html, chapter 39.

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children


Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner

NOTICE OF MOTION AND MOTION

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
_____________________________________________________________________

TO: Chester Mack, RESPONDENT, 1702 Glenwood Avenue in Minneapolis, Minnesota, 55405
NOTICE

PLEASE TAKE NOTICE, that before the honorable Stephen W. Jensen, without any oral argument, at the Family Justice Center, at 110 South Fourth Street, Minneapolis, MN 55401, the Petitioner, by and through the undersigned counsel, will move the Court for an order granting the following relief:

MOTION

Ordering the ex parte stay of execution to be dismissed;
Ordering Respondent to pay Petitioner $985.00 in attorney’s fees;
Alternatively, ordering the Petitioner’s attorney’s fees to be reserved for another motion hearing date already reserved by respondent at the Family Justice Center on October 9, 2012 at 9:00 a.m.;

SAID MOTION is based upon the Affidavit of Rose Mack, Memorandum of Law, together with all pleadings, exhibits, and records and files therein.

All responsible pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The Court may, in is discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in ruling on the motion or matter in question.

All new issues must be served and mailed with the court administrator no later than ten days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the court administrator at least (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.”

This document was signed by Ms. Kang Ming and dated September 6, 2012.

The second attachment was titled “Affidavit of Rose Mack in support of Petitioner’s motion”. It read:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner AFFIDAVIT OF ROSE MACK
IN SUPPORT OF PETITIONER’S MOTION
v.

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

“1. I am Rose, the petitioner, in the above stated matter. I deny all the allegations that Chester makes in his affidavit. I am a survivor of lung cancer, stomach cancer, and breast cancer. However, I am much weaker than I used to be because of all of my operations and treatments. I went to China to save our money for Chester and I and incurred little medical debt and overall expenses for my medical treatment. Chester agrees that I spent little and saved money by going to China. I have little money and $780 monthly income. My daughter was a flight attendant and I could fly standby for almost no expense.

2. I am frustrated that respondent Chet Mack keeps filing all of these documents to increase my attorney’s fees. I am upset that Chester tried to get the court to sign off on his motion without me being there. Chester claims he was only at the court to get a date and was evasive about his answer. He always uses mistress’s half brother, Joe Nelson, to hand-deliver documents and knows how to send an e-mail or call if he needs something. I am attaching a true and accurate copy of my attorney’s fees and his state of going to the court to get a date for the hearing order at exhibit 1 and 2. Chester has showed up a the court before in January 2012 and was there trying to speak to the judge and refused to leave. The court had to then include my counsel with this conversation and was told not to communicate to the court without my side being there again.

3. Chester has always been very difficult to deal with and all I want is to live the rest of my life peacefully. Debate excites him and for my years, his reputation in the community is not good. Almost everyone discredits him and his arguments. I believe the court is a place to be taken seriously and not a place to submit his personal opinions to make money through a book deal through his own publishing company. I wish Chester would respect my wishes about keeping our life private. Our divorce and his domestic violence is not something he should write false blogs on. Not to mention, Chester presents the court, judges, the clerk, my attorney, and myself in a false light in a 62 page single spaced blog, which is too cumbersome to attach found as http://www.ChesterMack.com/domesticabuse.html. Because it is I am attaching a true and accurate copy of the Internet blog of his landlord tenants issues as exhibit 3, bragging about being on the news for chanting heartless at the Minneapolis City Council. Chester is one of the authors of landlordpolitics.com and I’ve seen Chester write about himself in the third person.

4. Chester also continues to run for political office because he tells me he is bored. He never wins - not even close, but continues to run because it is fun for him.

5. I prey that the court can help me stop this behavior of running up my legal fees by awarding me some attorney’s fees. This entire motion was unnecessary and his ‘basis’ for trying to obtain a stay of execution is that the court is does not know what it is doing, which I find offensive. Besides, we already have a court hearing for October 9, 2012. Chester did not inform me of this court date either, but it was found.

6. Chester has a lot of assets. He pretends to be poor, but as an accountant and he graduated from Princeton. I know Chester owns at least 20 acres of land and a cabin in Wisconsin. During his first divorce, in early 1980s, he owned forty acres was worth $17,000.00. Half of this land he gave to his mistress, Joyce Johnson, while we were getting divorced. He has three Wunderlix’s Animation Celluloid of Dynamoe, signed by Wunderlix himself. Some of Wunderlix’s cels sold for $61,000 - $400,000, exhibit 4. Chester would not let me take and appraise these cels, but had told me about $40,000 each is what he expected based on his research and openly tells the court he has them and that they are non-marital. He owns a house and land near a beautiful river in Milford Pennsylvania. He also is a slumlord in North Minneapolis dealing with tenants paying mostly cash for three rental properties. I remember that he used to brag that even if he added up the values of his real estate and personal property taking away the debt he purposely incurred for the divorce, he has nearly $1 million - and I would not see a dime if I divorced him. Besides for rental income, he also has his social security and pension.

7. Chester has always said if a court would dare order him to pay anything from what he considered as his, he would do everything to make sure I do not get a dime. He is the one who purposely sabotaged our settlement agreement with bad faith. He came and offered me nothing at the last minute after a year of offering the same amount, but finding some other thing wrong with the agreement. If I had known he was like this, I would not have tried so hard to settle with him, incurring extra attorney’s fees trying.

8. Further, Chester will not give me what he tried to get the court to sign ex parte and only this notice of motion and motion with out any hearing date. It has been asked many times if this is the complete seat of documents he gave to the court to sign and I received no answer. I have received two envelopes of information now. One was just the notice of motion. The second is a notice and an affidavit that I am attaching it as exhibit 5 only because I am not sure what he has shown to the court.”

Dated: 9/ 6/ 2012 Rose F. Mack
Rose Mack
Petitioner

This document was notarized on the same day.

The third document was titled “Memorandum of law in support of petitioner’s motion”. It read:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner MEMORANDUM OF LAW
IN SUPPORT OF PETITIONER’S MOTION
v.

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

INTRODUCTION

Respondent moves this court with untimely personal opinions, derogatory messages to the court, and vague guesses as to the potential consequences that he may suffer in the future. Petitioner responds by moving the court for an immediate dismissal of the ex parte stay of execution and for an award of attorney’s fees based on the party’s financial need and to help prohibit respondent’s repeated nuisances.

FACTS

On August 28, 2012, the respondent sought the court to rule ex parte for a stay of execution in regards to a monetary award ordered to the petitioner as a result of a two-day evidentiary hearing held on May 7 and 8, 2012 [Judicial Notice and Aff. Rose, paragraph 2] The trial order permits the petitioner to collect her award from the dissolution of marriage beginning in October 2012. [Judicial Notice]

On and prior to August 28, 2012, the petitioner did not receive any notice regarding said motion [Aff. Rose paragraph 2] On August 30, 2012, a notice of motion and motion, without a date, time, or location was received through United States Parcel post [Id.] Then, over the Labor Day weekend, petitioner was served a ‘post-trial motion for stay of execution,’ without a date, time, or location and an ‘Affidavit of Chester Mack’ [Exh.5, Aff. Rose paragraph 8]

In Exhibit 5, the respondent does not mention whether any application of relief was made and added no new facts to support his allegations, but claims the court ‘does not comport with business realities.’ [Exh. 5] Further, petitioner sent respondent several communications over the Labor Day weekend seeking any other documents, which were brought before the court. [Exh. 2] Respondent never clarified or gave an answer to petitioner’s inquire [Id.] He only claimed to ask the court for a court hearing date [Id.]

With this motion to dismiss the emergency post-trial motion for stay of execution, the petitioner has incurred $985.00 of attorney’s fees [Exh.1]. She claims both a need-based attorney’s fees due to her low income and high expenses and conduct-based attorney’s fees. The respondent is able to afford to pay these fees with the assets he possesses and his income, particularly if he were to rent to paying tenants [Aff. Rose paragraph 1] He told petitioner that he had nearly a million worth in property and admitted to both voluntarily transferring and making little to no effort to collect the $89,000 given to Joyce Johnson, which does not include the twenty acres of property in Wisconsin for $1.00 [Aff. Rose paragraph 6; Exh. 6] The respondent then created long internet blogs about the petitioner’s private life, misstating several facts, has a history of being difficult to deal with, and ran for political office numerous times, including being the Attorney General, after he retired as a hobby [ Aff. Rose paragraphs 3-5, 7] Therefore, with the limited information received, the petitioner has no option but to respond.

ANALYSIS

The court should not permit ex parte relief when the respondent does not make any effort to notify the petitioner of the application for relief. Minnesota General Rules of Practice 3.01 states, ‘(i)n any application for ex parte relief, the court may require a demonstration or explanation of the efforts made to notify affected parties, or the reasons why such efforts were not made.’ In this case, the respondent clearly violated Rule 3.01 by mailing documents after he unsuccessfully tried to obtain ex parte relief. Because of respondent’s delayed actions and providing no explanation of the delay, the court should continue not to order respondent’s ex parte stay of execution.

Additionally, the court should not provide ex parte relief when it is in violation of Minnesota General Rules of Practice 3.02. Rule 3.02 states:

(b)efore an ex parte order is issued, an affidavit shall be submitted with the application showing: (1) No prior applications for the relief requested or for a similar order have been made; or (2) The court and judge to whom the prior application was made; the result of the prior application; and what new facts are presented with the current application.

Here, the respondent failed to state or make reference to whether any application for relief has been made. Then, the respondent failed to present any new facts with the current application and continued to reiterate his previous allegations.

Furthermore, respondent’s argument for ex parte relief contained in his affidavit fails in its entirety. Respondent states in five bullet points that the court does not understand the realities of anything in regards to respondent’s properties. It does not take into consideration ‘business realities’ and ten weeks’ notice is not enough time to secure a mortgage or sell real property, along with several other reasons. However, respondent immediately contradicts his own argument by citing to the court’s passage that clearly shows the court has taken into consideration respondent’s hardships - ‘husband would have to sell a portion of his non-marital real estate or borrow money secured by that real estate.’ [FOOTNOTE 1: Affidavit of Chester Mack, paragraph 1, last sentence.] Additionally, if the court were to dismiss this motion, respondent still has time to include it in the other motion hearing that is to take place on October 9, 2012.

However, if respondent had presented a shred of new evidence, or presented a proper motion before the court, then his argument of being unjustly harmed in the future would still fail because respondent has severely misrepresented and devalued his property and consequently would not be unjustly harmed. Respondent owns at least twenty acres of land in Wisconsin, a cabin in Wisconsin, three Dynamoe prints, signed by Wunderlix, with an admitted value of at least $40,000 each, a house and land in Milford, Pennsylvania, an income producing nine-unit apartment buildings without any liens. Respondent transferred twenty acres of land to Joyce Johnson for $1.00, then permitted both Joyce Johnson and her daughter to remain in the couple’s income producing properties without paying rent and made little effort to collect rent. Petitioner claims respondent bragged about owning at least $1,000,000 in property after paying his debts and that she would never see a dime of what was considered non-marital property.

Additionally, the petitioner requests attorney’s fees as authorized by the Minnesota Statute, Section 518.14, which has a need’s based requirement and permits the court to award fees based on conduct:

[T]he court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:

that the fees are necessary for the good faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Nothing in this section or section 518A.735 precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.

In this case, petitioner needs these fees to assert her rights, respondent has a means to pay them, and petitioner does not have a means to pay them with her approximate $780 in income. The court may always award any other fees due to the misconduct of the respondent. Respondent has knowingly misrepresented that he tried to obtain an ex parte order and was only at the court to obtain a court hearing date. He then files an affidavit that is has no legal or substantiated factual basis and merely slings insults at the court.

Lastly, the petitioner objects to all of Respondent’s page two of his affidavit. Paragraph two, which tells the court that it does not understand the real word of business, is argumentative. The mere idea of not being able to sell a property in ten weeks is speculative. Paragraph three is speculative because respondent was able to secure a loan on a commercial property five years ago, but now that same loan would not be secured. Paragraph four is again speculative and Mr. Mack is not a real estate expert or loan expert, thus using his personal opinions regarding small town real estate and lending is not appropriate. Paragraph five again is speculative as there is no evidence that the cost would be substantial, besides for his personal opinion.

Conclusion

The court should dismiss respondent’s ex parte motion for a stay of execution because it is speculative, filled with unreasonable insults, and does not have any basis in law or fact and award the petitioner her attorney’s fees.”

Dated: 9/ 6/ 2012 Su-Mei K. Ming

Su-Mei K. Ming
Attorney at Law
8XXX Wayzata Blvd. Suite 320
Golden Valley, MN 55426
(612) 885-XXXX
Attorney ID #XXXXXX

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner EXHIBIT LIST

v.

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

I, Su-Mei K. Ming, have received the following documents and attached true and correct copies of each:

Exhibit 1 Attorney’s Fees Chester
Exhibit 2 Emails from Mr. Mack stating he went to receive a court hearing date
Exhibit 3 Landlord politics
Exhibit 4 Celluloid Print Values
Exhibit 5 Mr. Mack’s Exhibit List
Exhibit 6 Admission for transferring $89,000 to Joyce Johnson

Dated: 9/ 7/ 2012 Su-Mei K. Ming

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(29) Respondent’s Affidavit in Response to Petitioner’s Motions (September 11, 2012) See divorcebook.html, chapter 40.

_____________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children
In Re the Marriage of:

Rose Fen Mack
Petitioner

and

RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S NOTICE OF MOTION AND MOTION
AND PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION (RAISING NEW ISSUES)

Chester Arthur Mack Presiding Judge: Stephen F. Jensen substituting for referee Alice Raleigh
Respondent
File No. 27-FA-11-XXXX

________________________________________________________________

 

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )

I am Chester Mack, the respondent in the above matter. I am responding to statements and issues raised in the petitioner’s motion for the court to my requested stay of execution of payments to begin on October 1, 2012 and petitioner’s request for me to pay $985.00 of her attorney fees.

I deny that my motion presented to the court on August 28, 2012, represents ex parte communication. It was a motion prepared and approved by a representative of the Self-Help Center at the Family Justice Center. At this person’s instruction, I did take my motion to show the judge on the fifth floor but I did not, to the best of my recollection, receive a hearing date at that time. After the document was approved, I submitted it to the court at the filing desk and mailed a copy to the other attorney through a third party.

Not knowing that motions prepared by self-represented parties had to be reviewed and approved first by the self-help center and unable to schedule an appointment on that day, I had my representative mail the motion to the other attorney on the previous day. The self-help center prepared the second document. The principal difference between the two documents was that in the latter my statements were made in the form of an affidavit which was notarized. It may be that the two similar submissions confused the other attorney.

My motion for stay of execution of part of Judge Jensen’s order dated July 20, 2012, was simple and straightforward. The reason for making the motion was that the scheduled hearing date on October 9, 2012, came after October 1, 2012, when I was obligated to pay a large sum of money that I did not have. This was a legitimate request, not involving extraordinary efforts or issues that would warrant my paying the other party’s attorney Bills. However, such attempts to shift those Bills to me have been a main theme of my wife’s and my divorce case for most of the year.

The petitioner’s affidavit contains a number of statements many of which seem intended to sully my reputation with the court. Some of the statements are true, but most are either half truths or lies. It would serve little purpose here to respond to each allegation. However, I feel obliged to address a few of them.

In the truth category, the petitioner has indeed received treatment for cancer in China although the current state of her health is unknown. It is also true that she now has a monthly income of $780 which, I believe, roughly corresponds to payments for Social Security Disability. It is true that I wrote and published on the Internet a complete, detailed account of my arrests for domestic abuse. About a week ago someone hacked my computer and erased the related Dreamweaver files on my hard drive although they are still on the web. It is true that I have run for elective office several times but I have no future plans of this sort. I also worked in the accounting field and graduated from Princeton.

It is untrue, however, that I file motions for the purpose of increasing my wife’s attorney fees or have tried to get the court to sign off on my motions in the absence of her attorney. Despite my allegedly poor reputation in the community, I have been co-leader of a landlord group in Minneapolis and have coauthored a book with the late U.S. Senator Eugene McCarthy. In 2008, I received more than 22,000 votes as a third-party Congressional candidate. I do not recall having told anyone that I ran for political office because I was bored. I did inform the petitioner of the October 9th court date through the copy of motions sent to her attorney. Joyce Johnson is not my “mistress” and I am not a “slumlord”. I have not boasted that I have nearly $1 million in property and that my wife would “not see a dime” if we were divorced. In fact, I have already made several payments in accordance with Judge Jensen’s order. I have not tried “to get the court to sign ex parte.” I am not withholding documents related to the motion from the other party.

The Petitioner’s exhibits were not initially sent to me. Having received them today (September 11th), I see a repetition of exhibits submitted during the trial as well as other materials having little relevance to my motion.”

This signed affidavit was filed with the court clerk on September 11, 2012.

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30. Petitioner’s Affidavit in support of her Motion September 19, 2012 See divorcebook.html, chapter 40.

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner

v

AFFIDAVIT OF ROSE MACK
IN SUPPORT OF PETITIONER’S MOTIO
N

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

“1. I am Rose Mack, the petitioner, in the above stated matter. I want to make some corrections to my affidavit. I have many doctor’s visits at the time the documents to the court were due to the court and my English is not very good.

2. I have had intestinal cancer and breast cancer. I have had things removed from my lung but it was not cancerous. I do not have $780 monthly income. I was trying to say that Chester only gave me about $750 total as of Sept. 14, 2012. He is supposed to pay spousal support but says he has no money.

3. I deny everything Chester writes. I hope Chester find some other hobby and leaves me alone.”

Dated: 9-19-2012 Rose F. Mack
Rose Mack
Petitioner

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(31) Respondent’s Affidavit in Response to Petitioner’s Affidavit (September 21, 2012) See divorcebook.html, chapter 40.

_____________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children
In Re the Marriage of:

Rose Fen Mack
Petitioner RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S NOTICE OF MOTION AND MOTION
and AND PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION (RAISING NEW ISSUES)

Chester Arthur Mack Presiding Judge: Stephen F. Jensen substituting for referee Alice Raleigh
Respondent
File No. 27-FA-11-XXXX

________________________________________________________________

 

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )

 

I am Chester Mack, the respondent in the above matter. I am obliged to respond to new untruthful statements and suggestions in Petitioner’s latest affidavit, dated September 19, 2012.

The Petitioner states: “He (Chester Mack) is supposed to pay spousal support but says he has no money.” This statement clearly implies that I have violated the court order to pay Petitioner $250 in spousal maintenance twice a month starting August 1, 2012. I have fully complied with the order. I paid $250 by check (Check #3844) on August 1st, and $250 on August 14th (Check #3859). When Petitioner said she had not received the second check, I issued a replacement check (Check #3802) on August 22nd. For September, I paid $250 by check (Check #3805) on August 30th. The second check in the amount of $250, issued on September 14th, was paid directly to Petitioner by US Bank, as she had requested. In summary, all obligated payments to date have been made. Also, I did not tell the Petitioner that I had no money for these payments.

The Petitioner states: “I deny everything Chester writes.” This type of blanket denial is not really responsive to points that I made. For instance, part of what I wrote in the earlier affidavit (point 6) was what I admitted to be true in Petitioner’s earlier affidavit. Is Petitioner now denying the truth of her own statements? That would appear to be the case, however, when she wrote in her latest affidavit: “I also do not have $780 monthly income.” Her previous affidavit had declared in the first paragraph: “I have little money and $780 monthly income.” Clearly, her latest sworn statement is disingenuous. She has belatedly realized that revealing this income contradicts the claim of being destitute upon which the spousal-maintenance award was based. The specific amount of $780 suggests that Petitioner has some as yet undisclosed source of income equalling that amount rather than that it was confused with my monthly payments. She offers as excuses for the earlier misstatement the fact that she has had cancer and the claim that she does not speak English very well. Such arguments have worked well for her in the past.”

Dated: September 21, 2012 ______signed______________
Chester Mack
Respondent

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(32) The Judge’s Order Regarding Stay of Execution (September 24, 2012) See divorcebook.html, chapter 41.

“The above-entitled matter came on before me by written submissions on September 24, 2012, on Respondent’s motion to stay execution regarding a provision of the parties’ Dissolution Decree. Respondent was self-represented and Su-Mei K. Ming, Esq. appeared on behalf of Petitioner. Based on the written submission and the specific portions of the record mentioned herein, I issue my order as follows.

Respondent seeks to stay execution of Conclusion IV.7 of the Decree that requires him to pay $50,000 to Petitioner as part of her property award in $10,000 monthly installments commencing October, 2012.

He has a motion for Rule 59 and Rule 60 relief set to be heard on October 9, 2012.

3. Rule 62.01 affords me discretion to stay execution and impose security as a condition of stay.

Petitioner seeks need-based and conduct-based attorney’s fees for having to respond to the motion. There is merit to her alternative request that I reserve this for later determination.

IT IS HEREBY ORDERED AS FOLLOWS:

Respondent shall deliver to me for my approval and signature a security bond in the amount of $51,000.

Effective upon my approval of the security bond and filing thereof by Respondent, paragraph IV.7 of the Judgment and Decree is stayed.

Petitioner’s motion for attorney’s fees is reserved.

The order was signed by Judge Stephen F. Jensen on September 24, 2012.

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(33) Petitioner’s New Motion before Hearing on Respondent’s Post-Trial Motion for Amended Findings of Fact/Conclusions of Law or, Alternatively, a New Trial (September 29, 2012) See divorcebook.html, chapter 42.

 

STATE OF MINNESOTA
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT COURT
FAMILY COURT DIVISION
CASE TYPE: Dissolution/Post-Trial ______________________________________________________________________ Court File No.: 27-FA-11-XXXX

Rose Mack, Also known as Rose Ying Mack, and Formerly known as Ying Min
Petitioner,
v.

Chester Arthur Mack, Junior, Also known as Chet Mack, and Chester A. Mack
Respondent. ______________________________________________________________________

TO: Chester Mack, RESPONDENT, 1702 Glenwood Avenue in Minneapolis, Minnesota, 55405

NOTICE

PLEASE TAKE NOTICE, that before the honorable Stephen F. Jensen, with or without any oral argument, at the Family Justice Center, at 110 South Fourth Street, Minneapolis, MN 55401,on October 9, 2012 at 9:00 a.m., the Petitioner, by and through the undersigned counsel, will move the Court for an order granting the following relief:

MOTION

Denying Respondent’s motion for relief in its entirety (responsive);
Ordering Respondent to pay Petitioner $999.00 in attorney’s fees (new);
In the alternative, ordering Respondent to pay a percentage of the above stated attorney’s fees;
Ordering Respondent to sign a consent form or waiver for the Petitioner to access the US Bank Accounts, even if Respondent claims he closed them due to alleged future and potential fraud prevention (responsive);
For such other relief that the court finds just, fair, and equitable.

SAID MOTION is based upon the Affidavit of Rose Mack, Memorandum of Law, together with all pleadings, exhibits, and records and files therein.

All responsible pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The Court may, in is discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in ruling on the motion or matter in question.

All new issues must be served and mailed with the court administrator no later than ten days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the court administrator at least (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.”

Date: September 29, 2012. By: Su-Mei Kang Ming

The other document read:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution/ Post-Trial
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner PETITIONER’S MEMORANDUM OF
LAW IN SUPPORT OF HER MOTION
v. (RAISING NEW ISSUES)

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

ARGUMENT

Rose Mack is an immigrant with below average language skills from another country which requires special legal attention and care. She needs translation and interpretation services and when time is limited, often times, the frustration of having a very important part of her life be determined without the comfort of her first language proves to be difficult and miscommunications over the simplest issues can and do occur. Ms. Mack requires counsel who has the knowledge of cultural communications, which involve primarily using indirect communications.

The court decided on July 20, 2012, that the Petitioner has met two out of the three subdivisions of the Attorney’s Fees statute in Minnesota Statute paragraph 51814. First, Petitioner needs to have counsel to assert her legal rights. Second, Petitioner does not have the means to pay for them. However, the court may be hesitant to find that Respondent has the means to pay for Petitioner’s legal fees. They are more affordable than the first request. Even if the Respondent cannot pay for all of the fees, he may have the mean to partially pay for them. Respondent owns five real estate properties, four of which, generate income, hangs art valued in the six figures, pays for full time staff, has stock ownership, and guaranteed monthly income through his pension and social security. He can afford it.

Further, the court will most likely weigh whether it should have a pro se litigant pay for the attorney’s fees of his opponent. A court has a duty to ensure fairness and give deference to pro se litigants so long as he is not prejudicing the other party. Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987). However, Minn. Statute section 518.14 also governs the conduct of the parties, which permits the court to award attorney’s fees due to unnecessary delay. It is a conduct driven provision in the statute. In this case, the Respondent has claimed that Petitioner is using her cancer for a strategic advantage in her marital dissolution case when he was merely correcting the type of cancers that was misstated. The Respondent states, the “[Petitioner] offers as excuses for the earlier misstatement the fact that she has had cancer and the claim that she does not speak English very well. Such arguments have worked well for her in the past.”

This statement was hurtful and egregious. It has no place in the court system or anywhere. If there was a chance that the parties may have worked out some part of this case, it has been lost due to a callous statement made the Respondent. Therefore, the Petitioner seeks an award of attorney’s fees and will submit her responsive memorandum of law before the deadline.

Date: September 29, 2012. By: Su-Mei Kang Ming

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(34) Respondent’s Affidavit in Response to Petitioner’s Motion and Affidavit (September 30, 2012) See divorcebook.html, chapter 42.

 

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children
In Re the Marriage of:

Rose Fen Mack
Petitioner

and

RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S NOTICE OF MOTION AND MOTION
AND PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION (RAISING NEW ISSUES)

Chester Arthur Mack Presiding Judge: Stephen W. Jensen substituting for referee Alice Raleigh
Respondent
File No. 27-FA-11-XXXX

________________________________________________________________

 

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )

 

“1. I am Chester Mack, the respondent in the above matter. I am obliged to respond to the Petitioner’s latest motions and legal arguments.

2. The Petitioner’s five-point motion is untimely and should be disregarded by the court. It comes in a document signed on September 29, 2012. A PDF file was emailed to the court a minute before midnight on the same day (11:59 p.m. on September 29, 2012). I was copied. The same email contained the Petitioner’s legal memorandum. I became aware of this email late on the following day. Both parties have thirty days after the court decision or another party’s responsive motions to file post-trial motions. The judge’s decision was signed on July 20, 2012 and the Notice for Entry of Judgement was filed on July 30, 2012. The Respondent’s post-trial motions for amended findings of fact and conclusions of law or, alternatively, a new trial, and motion for stay of execution was filed with the court on August 20, 2012. Therefore, the thirty-day period for Petitioner’s response ran out on September 20, 2012. She chose not to respond to Respondent’s post-trial motions filed on August 20, 2012, but did respond to a later motion pertaining to the requested stay of execution. Therefore, her time for responding to issues raised in Respondent’s post-trial motions has expired.

3. The “Notice to other party” served on August 20, 2012, contained this statement: “New Issues: If you want to raise new issues in your Responsive papers, instead of just responding to issues raised by the other party, your papers must be hand-delivered to the other party at least ten (10) days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the Court Administrator in person at least ten (10) days before the hearing , or mailed at least thirteen (13) days before the hearing.” The Petitioner’s motions and arguments raise new issues. The hearing is scheduled for October 9, 2012. Ten days before the hearing would be Sunday, September 30, 2012. Thirteen days before the hearing would be September 27, 2012. No personal service was made on me on or before September 30, 2012. If the document was prepared on September 29, 2012, it is obvious that service by mail also was not made before that date. Communication by email does not constitute personal service. The same considerations apply to filing with the court. Therefore, the motions raising new issues are untimely and should not be considered by the court.

4. Alternatively if the court chooses to consider motions and arguments contained in the latest documents, I am obliged to respond to the arguments. Since the Petitioner’s documents contain alleged factual information, I am obliged also to introduce pertinent facts to set the record straight. I will start with issues raised in Petitioner’s Notice of Motion and Motion.

5. The Petitioner’s first and fourth motions are untimely since they pertain to the Respondent’s post-trial motions filed with the court on August 20, 2012. The motion to deny my motions in their entirety is unsupported by arguments. The request to access my US Bank checking account is inappropriate since the trial is over. New information may not be introduced.

6. With respect to the second and third motions ordering Respondent to pay all or part of $999.00 in Petitioner’s new attorney fees, the argument is made that Minnesota Statute 518.14. The statute allows such fees to be collected from either party provided that “(1) that the fees are necessary for the good faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; (2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.” There is no evidence that I have the means to pay these fees when my wife does not, that the fees are necessary for my wife’s assertion of her rights, or that they do not contribute unnecessarily to the length and expense of the proceeding, especially when introduced in response to my post-trial motions related to the trial decision. The request for payment of my wife’s attorney fees is an unnecessary distraction from those issues.

7. Minnesota Statute 518.14 does allow the court to order payment of the other party’s attorney fees to a party “who unreasonably contributes to the length or expense of the proceeding”. This is, in fact, what the Petitioner’s attorney claims. In an earlier filing I made the statement “(Petitioner) offers as excuses for the earlier misstatement the fact that she has had cancer and the claim that she does not speak English very well. Such arguments have worked well for her in the past.” The attorney claims that inclusion of this statement in my argument caused “unnecessary delay” in the proceedings. I fail to see why.

8. I am fully sympathetic to my wife’s cancer. Even after I was arrested for domestic abuse in February 2011 on trumped-up charges, I pled guilty-continuance with a special provision that I be allowed to travel to China to accompany my wife during her planned cancer operation as we had discussed. The attorney said my wife did not want me there so I did not go. I am less sympathetic to the frequently made point that my wife does not speak good English. Her English is much better than what the court has been allowed to see.

9. The reason that I made the above-quoted statement was to point out that references to my wife’s health or her linguistic ability had nothing to do with any of my previous motions or arguments or issues. I have tried to keep my arguments focused on the trial decision and, secondarily, on points raised in my wife’s documents. Throughout the divorce proceedings, however, my wife’s attorney has consistently steered the discussion in an emotional direction - on one hand, vilifying me and, on the other, portraying my wife as a victim. I fault this attorney for using such a strategy to prevent my wife and me from settling and, in the process, driving up the length and cost of the proceeding. The word “churning” best describes what is happening here. It is churning of irrelevant issues and facts by the attorney intended to increase her fees.

10. In an earlier set of motions, dated September 6, 2012, my wife’s attorney argued that I should be made to pay part of her fees because I had attempted to obtain an “ex parte stay of execution” regarding the requirement to pay $50,000 in cash. I have never understood why this was “ex parte”. As I previously explained, I only attempted to contact the court directly when people at the self-help center of the Family Justice Center asked me to go upstairs to obtain a hearing date. The court clerk met me and obtained such a date from the judge. All papers were then properly filed with copies sent to the other attorney.

11. I am fully entitled by law to request a stay of execution. It is a normal part of post-trial proceedings. Normally, both parties pay their own attorney fees. The only aspect which may require closer examination would be the fact that my motion for stay of execution filed with the court on August 28, 2012, duplicates a portion of the documents submitted to the court on August 20, 2012, regarding my post-trial motions. Presumably this duplication caused my wife’s attorney to do the same work twice and increase the Chesterings to her client. But, of course, she failed to respond to my first set of documents so there was no duplication of effort.

12. Why did I file the motion for stay of execution twice? I included it initially with my other motions to create a package that would be convenient for the court to examine. My expectation was that the judge would rule on my motions within thirty days as court rules prescribe. However, the same rules allow the court to extend the time of the hearing; and that is what happened. Judge Jensen set a date of October 9, 2012 for the hearing. That posed a problem for me. I was required to make my first payment of $10,000 to the Petitioner on October 1, 2012, and the judge would not make a decision on the motion to stay the execution until October 9th. I consulted both with the court clerk and the people at the self-help center about this problem and on the basis of those conversations decided that my best option was to introduce a separate motion for staying the execution. Hopefully, that issue would be decided before October 1st; and it was.

13. I did not unreasonably prolong these proceedings. If anything, the proceedings have been prolonged by the fact that I have had to respond to a broad range of personal attacks that include much false information. I believe that if this misinformation is not addressed, it will become part of the court record and be considered undisputed fact. Therefore, I have been obliged to offer lengthy rebuttals to points raised by the other side which, in many cases, had little to do with the issues raised at trial. For example, there were exhibits related to my landlord activism, the commercial value of Wunderlix prints, and an email related to the story of my arrests for domestic abuse posted on the internet. I have already identified several “facts” in my wife’s affidavits which I believe to be false.

14. My my wife’s latest set of motions, though untimely, present additional allegations of fact which are false or misleading. Turning to the “Argument” section of my wife’s latest submission, the first paragraph deals with her skill in using the English language. I would say that, compared with many other immigrants of her age, she has above-average proficiency in using English. Rose learned English from a subordinate when she was a hotel manager. We conversed mainly in English during my first visit to her in Beijing in January 2000. Since then, Rose has lived in the United States for the better part of twelve years. She has taken English as a second language classes. She worked for three years as a sales employee at Target dealing mainly with English-speaking customers, earning an award for excellent service. While I do not deny that having an interpreter to deal with complex legal or medical issues may be prudent, it is not justified to assume that my wife has inadequate language skills for living in the United States. It is also odd that my wife’s attorney, Ms. Kang Ming, claims not the speak the same dialect of Chinese as my wife but that her services are required for linguistic as well as commercial reasons. What language do they use when discussing legal strategy? I would guess it is English. This attorney’s use of interpreters - two of them - may be partly theatrical, intended to convince the judge who has never heard my wife speak English that she has little or no such skills. We saw at trial how those interpreters were used. They passed notes to each other evidently giving answers that my wife might use in response to my questioning and also contributing significantly to the time needed for that part of the trial.

15. The second paragraph proposes that two out of three requirement to shift the burden of attorney’s fees to the other party have been met. “First, Petitioner needs to have counsel to assert her legal rights.” I would point out that after spending nearly $6,000 on counsel I could not afford further counsel to keep up with Ms. Kang Ming’s relentless game playing designed to drive up fees. I made numerous serious attempts to settle the divorce and was always rebuffed. My wife might have agreed to settle had not her attorney repeatedly discouraged this. Cost was evidently no object.

16. My wife once told me that the game plan was to convince the court to shift those attorney’s fees to me; and indeed that is the only theme that makes sense in this complicated, messy divorce. The process has been entirely driven by my wife’s attorney’s wish to generate fees for herself. She has some unknown hold on my wife to gain consent for this scheme. I would guess it has to do with leverage in collecting the fees that have not yet been paid. This attorney is quite ruthless in pursuing her monetary objectives.

17. With respect to the second point, it is untrue that Petitioner lacks the means to pay her attorney’s fees. She owns a non-marital apartment in Beijing valued at $250,000. She has an interest in another apartment which she has failed to disclose. She may also own other investments in China but there was not time for me to search for them in questioning. If my wife plans to live in the United States, why is she allowed to keep those Chinese investments when the court order taps into my non-marital property with the prospect of destabilizing my rental-property business?

18. With respect to the third point, the attorney’s argument overlooks the fact the that the trial order saddles me with more than $320,000 in marital debt. I have very little cash or credit left. I do not have full-time staff to help manage my rental property, only someone who helps with maintenance when needed. My stock ownership is less than one tenth what it was at the time of marriage. The art work, a family heirloom never intended for sale, was agreed at the settlement conference to be off limits. Now my personal finances are thrown into turmoil by the spousal-maintenance award and possible sale of my non-marital apartment building in order to raise cash.

19. Some context is required to understand why the divorce has been so long and bitter, especially when no children are involved. First a time line: My wife filed for divorce on March 8, 2011, while I was living away from home under a court order. I made my first settlement offer two weeks later; it was promptly rejected. I engaged the services of attorney Frederick Smith on March 30, 2011. He and Ms. Kang Ming agreed to a procedure known as the FENE at a pretrial hearing with referee Raleigh held on April 15th. On May 5th, referee Raleigh ordered the FENE. In June, I made my second settlement offer which the other party rejected a month later, making an unreasonable counteroffer.

20. On July 15th, after months of negotiating over the FENE, Smith received an email from Kang Ming stating: “ Let’s discuss how to proceed with the dismissal of the FENE.  My client does not want to participate and she told me your client does not either . . . actually . . . I have an e-mail from your client that states this.” This was a complete lie. I was looking forward to the FENE and had communicated this to my attorney. There was no such email. When my attorney told the other attorney the FENE was court-ordered, she replied: “ Are you sure?  Chester told Rose that you were not listening to him and running up his attorney’s Chester.  He did not like that you charged so much, etc.” Again these were lies. I was not objecting to the FENE. I had made no such complaints about my attorney. Nevertheless, at a telephone conference which the two attorneys held with referee Raleigh on July 18th, Raleigh decided to reverse her previous order and release my wife from the FENE. I was devastated. This would have kept us on track for a reasonable settlement.

21. Then began a period in which little or no progress was made toward settlement. My best option, Smith advised me, was to agree to mediation. The court-ordered mediation session took place on October 17th. Both high-priced attorneys were required to be present. However, mediation proved to be just another exercise in game playing by attorney Kang Ming. Instead of negotiating a settlement, the other side was interested only in discussing marital misconduct. Nothing was accomplished. With dwindling finances and seven months of time before the scheduled trial, I wrote referee Raleigh a letter pleading for her to move up the trial date. I could not afford much more of the expensive game playing. At that point, my attorney withdrew from the case. I was on my own.

22. At the end of October, Rose and I suddenly agreed on a settlement. I drafted a list of points to be included in the agreement and also a preliminary version of the agreement which might be submitted to a judge for approval. Rose wanted her attorney to review this document. I agreed. However, Rose then insisted that her attorney write the document. Over the next two months we went through four or five different versions. Each time, Rose’s attorney would slip extraneous points into the document disadvantageous to me. I would object, and a new document filled with new booby traps would be produced. Two friends, one Rose’s and one mine, sat down with us to hammer out the wording of a document acceptable to us both. Ms. Kang Ming accused my friend of practicing law without a license. This went on until the first week of January, 2012. I gave Ms. Kang Ming three more days to produce a clean document or I would withdraw my offer.

23. The day that my offer expired, Ms. Kang Ming’s husband served me with a motion for temporary relief. Even though my wife had free lodging, spending money, and all other expenses paid, this motion would have me pay my wife $2,100 per month additionally and also a large part of her attorney’s fees. I boned up on court rules and procedures, managing to respond to the other attorney’s motions while adding a few of my own. This then triggered a new set of motions to which I also responded. There was also a third exchange of documents in preparation for a court hearing on January 24th. Meanwhile, my wife started getting violent. After one such incident, I called 911 to try to get the police to calm her down. She interrupted my 911 call and then went to visit her attorney. Later that afternoon, after my wife went to the police station in the presence of her attorney, the police arrested me for allegedly striking my wife as I was shoveling snow outdoors. I was sitting in jail when the January 24th hearing was held. Referee Raleigh decided not to postpone the hearing after Ms. Kang Ming complained that she had gone to great expense in assembling her entourage.

24. My next two months were preoccupied with defending myself in the Domestic Abuse case. I represented myself. On March 19, 2012, the city prosecutor informed me that the charges were being dismissed. Then it was back to dealing with Ms. Kang Ming’s vicious charges and complaints. She sent letters of complaint to the court on an almost daily basis. I invariably responded. I sensed what her strategy was when Ms. Kang Ming informed me in an email that referee Raleigh was a cancer survivor. My wife, too, was a cancer survivor. She stayed on message in asserting at every opportunity that while my wife was in China getting less expensive cancer treatment, I was having sex with Joyce Johnson and giving her lots of money. It would not take a rocket scientist to figure out what decision the court might reach.

The month before the May 7th trial was supposed to be focused on discovery. I received a set of interrogatories that included 44 questions with 188 sub-questions - only 50 are allowed under court rules - and requests for production of 24 types of documents which included most documents I possessed. My requests, including 29 questions, were far more modest. I answered most of her questions on April 12th, refusing a few (such as the content of my current will). She complied at 5 p.m. on April 30th - the day before we were scheduled to meet with Judge Washington. I also asked her to schedule an appointment to visit my office to obtain requested documents. She refused, citing a physical danger to herself. She would also not permit me to come to her office to inspect documents. She offered instead to produce the documents which I had requested at the Edina Public Library. Then, when I showed up, she told me that none of the requested documents were available; my wife was in China looking for them. In the days before the trial, Ms. Kang Ming abruptly changed course. She now insisted that she come to my office to inspect documents on fifteen minutes’ or half an hour’s notice. Busy with more pressing matters, I refused. For such reasons, perhaps, Judge Jensen came to the conclusion that I had been uncooperative in the discovery process and therefore might have dissipated assets.”

signature Chester Mack Date October 1, 2012

Subscribed and sworn to before me this ___ day of October, 2012

Affidavit titled “Respondent’s list of exhibits”. It read:

“I, Chester Mack, have received the following documents and attached true and correct copies of each.

Exhibit #1 Email from Ms. Kang Ming, Petitioner’s attorney, dated 4/14/11 referring to an apartment given to Rose by Chinese government. It could not be the apartment sold in September 2010 or the “big apartment”, still owned, which Rose purchased. This represents concealment of assets.

Exhibit #2 Petitioner’s answer to interrogatories - request Number 17. Here the Petitioner denies having an interest in another apartment, the one referred to in Exhibit #1.

Exhibit #3 Email from Frederick Smith, Respondent’s attorney, dated April 14, 2011, stating that “trying to work out a settlement at this point is getting to be a ridiculous waste of time and money.” Ms. Kang Ming’s “churning” of legal communications was just getting started.

Exhibit #4 Email from Ms. Kang Ming dated July 15, 2011, stating that I do not want the FENE and that she has an email from me to that effect.

Exhibit #5 Email from Ms. Kang Ming dated July 15, 2011, questioning Mr. Smith’s professional integrity and again stating that both parties wanted the FENE dismissed

Exhibit #6 Email from Ms. Kang Ming dated November 30, 2011, disclosing that “the judge is a recovering cancer patient, I might add.” See underlined sentence on page 2.

Exhibit #7 Email from Ms. Kang Ming dated April 12, 2012, denying me permission to come to her office to do discovery of documents, which is the prescribed procedure.

Exhibit #8 Email from Chester Mack to Ms. Kang Ming dated April 25, 2012, proposing that they get started on discovery

Exhibit #9 Email from Ms. Kang Ming dated April 25, 2012 in response to Exhibit #8 in which she proposes to meet at the Edina public library to satisfy my discovery requests. I was told at the library that none of the requested documents were available.

Exhibit #10 Email from Ms. Kang Ming dated May 3, 2012 stating that she will be arriving at my office in 30 minutes to do discovery.

Exhibit #11 A breakdown of the number of questions asked in Ms. Kang Ming’s interrogatories keeping in mind that fifty questions or sub-questions are the maximum number allowed.”

 

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(35) Petitioner’s Motion and Memorandum of Law (October 3, 2012) See divorcebook.html, chapter 42.

 

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner

NOTICE OF MOTION AND MOTION

v.

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

NOTICE

PLEASE TAKE NOTICE, that before the Honorable Stephen W. Jensen, on October 9, 2012 at 9:00 a.m., at the Family Justice Center, at 110 South Fourth Street, Minneapolis, MN 55401, the Petitioner, by and through the undersigned counsel, will move the Court for an order granting the following relief:

MOTION

Ordering Respondent’s motion to be dismissed in its entirety;
Ordering Respondent to pay Petitioner $985.00 in attorney’s fees for the emergency stay of execution and an additional $999.00 in attorney’s fees for this hearing, which may have been reserved from the prior hearing;
Alternatively, ordering Petitioner to place into trust any martial property awarded to her from the Respondent until after said motion:

SAID MOTION is based upon the Affidavit of Rose Mack, Memorandum of Law, together with all pleadings, exhibits, and records and files therein.

All responsive pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The Court may, in is discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in ruling on the motion or matter in question.

All new issues must be served and mailed with the court administrator no later than ten days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the court administrator at least (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.”

DATE: October 4, 2012. BY: Su-Mei Kang Ming

The other document submitted concurrently read:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner NOTICE OF MOTION AND MOTION

v.

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution/ Post-Trial
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Rose Fen Mack
Also known as Rose Ying Mack, and
formerly known as Ying Min

Petitioner PETITIONER’S MEMORANDUM OF
LAW IN SUPPORT OF HER MOTION
v.

Chester Arthur Mack, Junior
Also known as Chet Mack, and
Chester A. Mack

Respondent
Presiding Judge: Honorable Stephen Jensen
_____________________________________________________________________

INTRODUCTION

Greed – the fuel that drives this case. The price of his greed? $50,000 and a $500 monthly award of spousal maintenance. A man who was born into a family of wealth, went to Princeton, owns five real estate properties, four of which, generate income, hangs art valued in the six figures, pays for full time staff, has stock ownership, and guaranteed monthly income through his pension and social security, will tell this court – he can’t afford it. But, before the during the commencement of the divorce, Chet Mack was able to afford transferring $89,000 and real estate to his other woman, Joyce Johnson, giving her adult daughter thousands, making repeated loans to friends, and renting apartments without any effort to collect rent.

Now, the one thing, the court of appeals does not typically decide is credibility. Rose Mack flew home early from her out of country medical treatment and found Chester’s mistress had moved downstairs into their largest rentable apartment. He told her, he was having a baby. She forgave him. Rose lived with this man for ten years, never knowing he had an affair or that he could afford to pay her medical treatment in the
United States. Then, one day, she looked at his checkbook log and saw that tens of thousands of the family money was given away. When he caught her, he bloodied her lip, bruised her face, and was sent to jail. As the divorce progressed, he became more evasive towards disclosing his finances – never permitting the money to be traced. After a Year’s time passed, a child was never produced. This man tells the court, “[Rose] offers as excuses for the earlier misstatement that the fact that has had cancer and cannot speak English very well. Such arguments have worked well for her in the past.” The court again is left to decide – who is more credible?

ARGUMENT

An order denying a motion for amended findings is not an appealable order. Tompkins v. Sandeen, 243 Minn. 256, 67 N.W.2d 405 (1954); Urbanski v. Merchants Motor Freight, 239 Minn. 63, 57 N.W.2d 686 (1953). If a party does not bring a motion to make findings on an issue, that part will not be ordered stricken, even if the fact was material. Larsen v. People's State Bank of Butterfield, 171 Minn. 116, 213 N.W. 542
(1927); McDonald v. Whipps, 137 Minn. 450, 163 N.W. 746 (1917).

The Court shall make a “just and equitable” division of marital property, but the Court of Appeals will not alter the district court decision absent a clear abuse of discretion or an erroneous application of law. Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. Ct. App.2005).

The format of the arguments will be as follows: an evidentiary objection, summary of arguments made in the Respondent’s Amended Findings and Grounds section, then Petitioner’s arguments. Everything is denied, even if not responded to.

I. RESPONDENT HAS VIOLATED THE RULE REQUIRING THE MEMORANDUM OF LAW NOT TO EXCEED 35 PAGES WHEN HE SUBMITS A 52-PAGE DOCUMENT FILLED WITH OVER 35 PAGES OF HIS ARGUMENTS.

Pursuant to Minnesota General Rules of Practice 115.05, a Memorandum of Law, not including the recitals, shall not exceed 35 pages, including the original Memorandum and any responsive Memorandums. Petitioner has exceeded the page limitations by submitting a 52-page document, signed one time, consisting of:

• 2 pages of a notice of motion and motion, without a court hearing date, time, or place as required by Minnesota General Rules of Practice for the District Courts, 303.01(a)(1);

• 13 pages of “Motions to Amend Findings and Conclusions of Law” with woven in arguments;

• 33 pages of “Grounds;” and

• 2 copies of notices and 1 page of verification and acknowledgements.

Therefore, this court should not permit any more submissions by the Respondent and has the discretion to read or utilize 35 pages of Respondent’s argument.

II. THIS COURT SHOULD DENY RESPONDENT’S MOTION FOR A NEW TRIAL BECAUSE RESPONDENT HAS FAILED TO MEET HIS BURDEN OF PROOF IN REQUESTING ONE.

The trial court has substantial discretion in determining whether a new trial should be granted. see generally Brooks v. Realty, Inc. v. Aetna, Co.,149 N.W. 494 (1967); Sanchez v. Waldrup, 136 N.W.2d 61 (1965). A new trial should be granted cautiously and sparingly and to further substantial justice in the application of trial procedure. Boland v. Morrill, 132 N.W.2d 711 (1965) citing Boutang v. Twin City Motor Bus Co., 248 Minn. 240, 80 N.W.2d 30; Beebe v. Kleidon, 242 Minn. 521, 65 N.W.2d 614; Willmar Gas Co. v. Duininck, 239 Minn. 173, 58 N.W.2d 197. The appellate court usually defers to the trial court, for issues related to credibility in determination of whether to grant a new trial. Lamb v. Jordan, 333 N.W.2d 852, 856 (Minn. 1983).

From what Petitioner can deduce, the Respondent desires a new trial based on two primarily reasons found in Minnesota Rules of Civil Procedure 59.01(a) irregularity in the proceeding of the court whereby the moving party was deprived of a fair trial and 59.01(b) misconduct of the prevailing party. The Respondent also recites the string of allegations and Rule 59, 60, 50.02. It is the moving parties burden to argue law and
fact and not merely state them.

Because of the nature of this case, and the issues that surrounded the renumbering of the exhibits created, the Respondent should have incurred the cost of obtaining the trial court transcript to assist him in his aide of arguments and not relied on his memory of seventy plus years. If Respondent has the funds to give away nearly $89,000 to Joyce Johnson and thousands more to others in the last two years, then of all places, this would not be the place to choose to be frugal.
 

A. Respondent Failed to Show Irregularity and that the Court Deprived him of a Fair Trial, Therefore the Court Should Not Award a New Trial.

The Respondent has failed to present sufficient evidence that there was irregularity and may misunderstand the meaning of irregularity, which caused him an unfair hearing. This part of Respondent’s motion is difficult to argue because eleven of his points are related to his defense or excuse of violating a court order and not properly numbering his exhibits. This section provides key insight as to how the Respondent allocated his time at the trial. The rest of it is that Respondent jumps to conclusions or has a faulty memory.

1. Deny. The Respondent voluntarily rested his case and did not ask for any extensions of time. Respondent dominated the hearing due to mislabeling of exhibits and listened while the Petitioner made evidentiary objections of 133 of mostly incomplete exhibits and letters, which the court would then fairly determine. Neither party could begin until the afternoon on the first day of trial. Both parties stipulated to exhibits over the lunch break because Petitioner gave in and wanted to move things along. On the first day,
most of the afternoon was used up for Respondent’s cross-examination of the Petitioner, asking her where bathrooms and kitchens were of almost every single apartment in the nine-unit building. To the left or to the right. Over and over. The cross-exam continued until the next morning. The court tried to help manage
Respondent’s time several times, but the Respondent ignored the court. Petitioner objected to relevancy and asked and answered to try to speed up the process, but the court permitted the Respondent to allocate his time however he wanted. Claiming it was very relevant.

2. Deny. The Respondent made inappropriate accusations at the court and counsel throughout the proceedings. Judge Jensen was stepping in for Referee Raleigh and was almost immediately accused of impropriety due to Respondent’s frustration over the last motion hearings. Referee Raleigh would not permit ex parte communications even when Respondent showed up day after day demanding to speak to her and when she made an exception he accused the court of acting inappropriately. Then Respondent was angry at Judge Washington because the court would not order the Petitioner to find an affordable real estate expert for the Respondent to help him bring his case and that the Respondent had to cooperate with Petitioner’s real estate expert to evaluate his properties. Counsel refused to take up time at trial to discuss the allegations Respondent made, but denied them.

3. Deny. at all times, the Respondent prevented any marital tracing to be done.

4. Deny.

5. Objection, relevance. Deny. The Respondent interjects fault to his previous counsel for not complying of the court order, which is neither appropriate nor relevant to the court’s irregularities.

Deny.
Deny.

8. Deny. The court in no way gave an instruction to counsel regarding the Respondent’s
mislabeling of exhibits.

9. Deny.

10. (missing)

11. Objection, relevance. Ignorance of the law is not a valid defense. The recognition of a manila envelope does not replace a binder or the simple fact that the court order was violated.

12. Deny. No one prevented Respondent from accessing the trial transcript.

13. Deny. Petitioner had three total witnesses including the Petitioner, the expert did not testify.

14. Deny. Respondent’s sole witness who is Joyce Johnson’s half brother set to inherit one of Respondent’s properties, but tried to conceal this from the court, was most likely not credible. [1Joyce Johnson is Chester Mack’s former wife and person whom he had the extra-martial affair.]

15. Deny.

16. Deny. It is entirely inappropriate to accuse the law clerk of dialing the wrong number to help Petitioner advance her case.

17. Deny. It is entirely inappropriate to accuse the law clerk of misconduct. When the parties reached a settlement agreement at the first chance Petitioner had to review it she made a correction to a point she did not agreed to. The law clerk never instructed the Respondent to be quiet, but told him to sit down when he began to follow her. The Respondent has the burden to prove the debt is non-martial when it occurred during the marriage, but was too concern about where the kitchen was in any given apartment.

18. Deny. The interpreters were not acting inappropriately and were not passing notes to advantage the Petitioner. Throughout the whole 18-point process, it is clear that Respondent interjects fault to every person but himself from the court appointed Mandarin interpreters, the judges, the law clerk, lawyer, etc. However, because his focus is that everyone is at fault, he failed proved that none of these alleged irregularities deprived the Respondent of a fair bench trial whereby an unfair award to the Petitioner was the result of it.

B. The Discussion of the Extramarital Affair is Appropriate and Does Not Amount to Misconduct When the Presentation of Facts are Required to Prove Marital Dissipation when the Respondent Failed to Cooperate with Financial Discovery and to Defend Against the Respondent’s Claims of Petitioner’s Consent.

Respondent has failed to meet his burden of proof for misconduct of the prevailing party because the extramarital facts were so intertwined with this case that the discussion of them was necessary to show:

1. A party has the burden to prove the existing debt was not for a marital purpose [Minn. Stat. § 518.58];

2. A party alleging marital dissipation has the burden to prove there was no consent [Minn. Stat. § 518.58, subd.1a]; and

3. Parties in a dissolution context have fiduciary duties to each other and must exercise prudency in regards to marital funds [Minn. Stat. § 518.58, subd.1a].

First, the discussion of the extra-martial affair places into proper context that the character of the husband’s spending was non-marital. Their marriage did not benefit from the monetary transfers to the husband’s mistress, mistress’s daughter, or mistress’s half brother.

1. Compare: A party repeatedly spends money for his gambling addiction.

2. Contrast: A party did not spend any money, or spent nominal amounts, on his mistress (and her relatives), but humiliated the wife because he engaged in extra-marital affairs.

The latter example pinpoints the wife’s inappropriate objective for the court to assign fault, where as the first example shows a need to explain why the money was not for a marital purpose. Also, Respondent had many competing themes to explain why he gave Joyce Johnson money. One of them was because he and his wife wanted a child, presenting the e-mail regarding the wife’s infertility treatment and signing a tentative
recognition of parentage. [Exh. 113 e-mail regarding fertility treatments of Rose Mack and Exh. 12 – regarding tentative recognition of parentage]. However, no biological child of the Respondent was ever produced. In any regard, the transfer of money to Joyce Johnson was not for a marital purpose.

Second, the Petitioner discusses the extra-marital affairs and to show a lack of consent. The Marital Dissipation statute allows the parties to spend money for non-martial purposes so long as both parties agree.

1. Compare: Husband contributes to his mistress’s nonprofit, e.g. Hopewell, which is
husband’s mistress’s formerly run nonprofit organization who assists foster home children that husband has contributed to in this case and discussed in January 18, 2012’s motion hearing

2. Contrast: Husband contributes to a nonprofit, e.g., Susan G. Komen for the Cure

The first example illustrates that even if the nonprofit does a good thing, the law requires the wife to consent to donating the parties’ marital funds. The husband had claimed that he was contributing to Joyce Johnson’s business and Joyce Johnson thanked him on behalf of the children for his contributions. Because Joyce Johnson organized it, there was little possibility the wife would consent. [2 It is unclear if this nonprofit still exists. Joyce Johnson never came to testify, but she was placed on the witness list as someone who would. Petitioner conducted her case first and was not aware that Joyce Johnson would not show up.]

Third, because of Petitioner’s unique circumstance of her deteriorating health, she has to calm any concerns that the existing debt was due significant medical expenses incurred during the marriage or that she somehow was responsible for inappropriately spending the family money. The Petitioner shows that even in her time of needed of medical attention, she travelled out of country to save the family money by not
purchasing United States health insurance or seeking medical attention in the United States. The husband on the other hand, took benefit from this saving, and breached his fiduciary duty to the wife by choosing to spend it on a person who did not benefit the marriage in any way or was a necessity.

Petitioner’s testimony was essential to prove marital dissipation in this case. Her emotion as seen in her genuine anger towards the acts of Respondent’s spending illustrated to the court that she was truthful in her claims that the transfers of money were both not for a martial purpose or consensual. Further, Respondent did
not cooperate in the discovery process, which disallowed Petitioner to trace these transfers using the normal means such as bank and credit card records. Had he done so, the focus would be on the transfers. Respondent also denied marital dissipation in his Answer. Settlement negotiations according to the Rules of Evidence was not permitted to be discussed, if it were, the court could have seen it was Respondent’s bad acts that prevented settlement. Lastly, even if the Petitioner had engaged in inappropriate conduct, it was harmless error, as this trial was a bench trial and the court did not use any of it to attribute fault to the Respondent to give the Petitioner more money.

III. THIS COURT PROPERLY DETERMINED PETITIONER’S FINDINGS OF FACTS AND CONCLUSIONS OF LAW.

  When a claim that the record does not support findings, the party moving for amended findings should address the record evidence, explain why the record does not support the district court's findings, and explain why the proposed findings are appropriate. Lewis v. Lewis, 572 N.W.2d 313, 316 (Minn. Ct. App. 1997) (concluding Because wife's motion for ‘amended findings’ did not identify the alleged defects in the
challenged findings or explain why the challenged findings are defective, it was not a proper motion for amended findings . . .). A ruling under Minnesota Civil Rules of Procedure, 52.02 may not consider new evidence. Rathbun v. W.T. Grant Co., 291 N.W.2d 641, 651 (1974) citing Urbanski v. Merchants Motor Freight, Inc., 57 N.W.2d 686 (1953). A motion to amend findings must be based upon the files, exhibits and
minutes of the record, not upon newly discovered evidence that is not part of the record. Zander v. Zander, 720 N.W.2d 360, 364–65 (Minn. Ct. App. 2006). The Respondent did not provided a transcript to the court or the petitioner in making his arguments.

A. Finding of Fact 10 – Domestic Abuse: Objection, relevance. Respondent’s amended finding addresses the recital of the criminal court’s decision of a domestic abuse no contact order and its effect has no relevancy in this civil case addressing monetary issues. In its syllabus to the court, the Minnesota Supreme court stated a “request for amended findings of fact that are immaterial, or that call for a statement of
the evidence on which such findings are made, may be properly refused by the trial court.” Coggins v. Higbie, 85 N.W. 930, 930 (Minn. 1901). Coggins supports that no changes to a court order are required when the facts are immaterial, as it here, because the division of marital/non-marital assets and an award of spousal maintenance depends on the financial status of the parties and not upon a party’s criminal guilt, innocence, or character evidence relating to violence. Id. Further, as stated in the Petition, the court captured its overall truthful character because Chet Mack pled guilty to at least one act of criminal assault in February 2011, in 27-CR-11-XXXX, and had a no contact order placed against him. The letter states that Chet Mack had
the second criminal case dismissed because of a lack of evidence, not because he was found to be innocent by a court or jury of his peers. [Exh. 99 re-labeled to Exh. 199]. Therefore, the court acted appropriately and does not need to amend its finding of Domestic Abuse by the Respondent upon the Petitioner.

B. Finding of Fact 11 – Setting Forth Finances: Objection. Speculation, Ripeness. With the exception of only citing to one exhibit, a parties’ 2010 joint tax return, Respondent fails to show support for his editorials and adds five pages of facts without any citation for the Petitioner to respond to. Even with the one exhibit, the Respondent conceals the cause for the loss of rental income was due to his voluntary non- efforts to collect rent as articulated by the court.

Respondent hindered determination of his assets and the martial assets. Bank accounts, brokerage accounts, and other investment accounts were asked for in Petitioner’s discovery, but were not produced [Exh. 24]. Further, more rental income should have been received and made a part of the marital property. Respondent could have rented two apartments out to paying renters instead of giving them to Joyce Johnson and Elizabeth Mora. Respondent used to rent Joyce Johnson’s apartment out to Joe Nelson for $1150 around April 28, 2008. [Exh. 112, not relabeled]. Further, the basement apartment where Joyce Johnson lives may rent for $1250 per month. [Exh. 20]. This entire amount lost can be claimed as a marital asset placing both parties in the position it had been before the disposition of marital asset occurred.

In regards to future income, in addiction to renting to paying tenants, Respondent may receive extra rental income from renting the one bedroom apartment in the four-plex, where Petitioner no longer resides. Further, the Milford house can also have its other bedrooms with extra bathroom, kitchen, rented out for extra income as the Milford lease indicates that those spare rooms and bathrooms are there, but we only know of one
tenant. [Exh. 119 not relabeled].

Furthermore, the court correctly captures that an individual who is in poor financial restraints would not voluntarily make repeated numerous transfers to other people. Respondent borrows at least of $10,900 to Joe Nelson over the Years,3 which does not always include money transferred in the checkbook logs. [Exh. 13; Exh. 11]. [ 3
Exhibit 13 shows transfers to Joe Nelson: $200 on June 29, 2009, $5,000 on December 3, 2007, $1,750 in October 12, 2002, not collect $1500 for April 28, 2004, $2500 in May 19, 2003.] Elizabeth Mora received $4,000 check number 2144 on October 31 (Year unknown) in addition to several thousands more. [Exh. 11]. Respondent gave Joyce Johnson $89,000 by permitting her to use his credit cards and check cards4. [Exh. 19]. [4
Exhibit 19 shows that Chet Mack claimed Joyce Johnson $89,000 made charges to his credit card and bank cards that he is disputing about $5,000 to $10,000 with the bank. The checkbook logs have numbers written next to them indicating checks are written, which is clearly different than a charge to a card.] Numerous checks are written to Ms. Johnsonover the Years, e.g., check number 2612 for $2,000 on December 15, 2011, check number 1812 for $1,100 on May 17, 2006 totaling tens of thousands [Exh. 11]. The checkbook log does not show the $15,000 transfer that Joyce Johnson discusses receiving in 2009 from the Respondent. [Exh. 12]. A snapshot of one week of Respondent’s checkbook logs, from November 15-22, 2011, Respondent transferred $2,895 as follows:

Check No. Date Transaction Description Amount Paid
3335 11/15/2011Joyce Johnson $350
3336 11/??/2011Joyce Johnson $450
3238 11/17/2011 Joe Nelson $650
2739 11/18/2011 Bob Hoffman $220
2740 11/19/2011 Elizabeth Mora $900
2743 11/22/2011 Joyce Johnson $325
6 Checks One Week 4 people $2,895

Even if somehow the court was wrong in determining the credibility of the Respondent, which it is not, the Respondent still cannot overcome the law, which required him not to make any unnecessary transfers without Petitioner’s permission during the pendency or during the marital dissolution. The $89,000 transfer to Joyce Johnson much more than the $50,000 plus some stock and nominal amounts in bank accounts awarded to the Petitioner.

Respondent then continues to spend numerous paragraphs speculating as to a second apartment. First, Respondent accuses that Petitioner admits to owning real property that she does not own, referred to as “second apartment,” because she denied it. Respondent then continues to accuse former wife that she does not need a special diet due to her type II diabetes, as discussed in January 18, 2012 hearing, even though a $350 per month food expense is not high to begin with. Respondent then purposefully brings up petitioner’s daughter’s non-legal obligation to assist her mother when all this information was objected to and sustained to at trial because it is not relevant.

Further, the Respondent’s Answers to Petitioner’s discovery shows that Respondent actively obstructed Petitioner’s financial requests and prevented her from capturing the value of the parties’ marital assets. This obstruction prevented tracing of assets because he omitted all pages of his financial documents, except for the ending balances of bank statements, credit card statements, and loan documents. Petitioner
sought for negative inferences that the liability was not marital and the marital assets were not accurate.

C. Finding of Fact 12 – Real Estate and Assets: Objection, beyond the scope. Petitioner opposes the introduction of a new opinion that Respondent has $70,000 in total assets, by simply claiming a figure without any type of support. Respondent had ample opportunity to bring this information forward, especially when Respondent was legally represented for approximately six months. Respondent claims the lawyers discuss this life estate second apartment, but it does not appear on the exhibits that the Respondent claims. Further, Respondent purposely prevented any discovery of assets during the discovery process. Even if this claim had any merit, this calculation could not be correct summary. Two of the five real estate properties are worth over $550,000, which the parties stipulated as their values. [Exh. 62 re-marked to Exh. 300]. Only one of his real properties has no equity. Therefore, the court should disregard a need to change this finding.

D. Finding of Fact 13 – Statement of Legal Descriptions: Objection, confusing, redundant. Simply because a person falsely accuses a party of the same fact numerous times as a trial tactic does not make it true. The Respondent claims an apartment was not disclosed, but then provides claims that one of his exhibits shows it was disclosed, eleven months prior to trial. Which on is it?

E. Findings of Fact 15 – Automobile: Objection, findings should not include the data placed on pre-hearing statements and the amount is relatively nominal. However, the Petitioner would stipulate to the value of the car if Respondent mentioned it before the conclusion of our evidentiary hearing.

F. Findings of Fact 16 – Bank Accounts: Objection, vague and confusing. Petitioner does not understand the addition.

G. Findings of Fact 18 – Parties Stipulations of Facts: The court appropriately determined that neither party stipulated to classification of the liability as being marital, except Petitioner’s $6,000 medical debt. [Exh. 62 re-marked as Exh. 300]. The petitioner does not seek an amendment of the relatively small amounts assigned as marital debt, but only to preserve this issue when she will be likely forced to respond to
an appeal. However, former wife only accepts that debt existed at the time the exhibit stated it existed and not to show that he did not take out loans and simply transfer the money to his own bank accounts until after the divorce.

H. Findings of Fact 19 – Parties Stipulations of Awards: Deny: Objection, misstates the facts. It is the movant’s burden to show that the stipulated facts are not what was agreed to. Former husband has not shown anything in this motion that warrants a change. The two Glenwood properties were stipulated as being marital and the former husband was given both properties and the existing debt.
   
I. Conclusions of Law II – Spousal Maintenance: Objection, confusing. Former husband moves to strike the language for permanent spousal maintenance amends into maintenance for six total months, but provides no legal or factual basis requiring this change. Further, the language regarding the IRS and this Court’s authority is unnecessary. Simply because it is not stated in a court order does not negate the existence of laws. Each party will have to pay their own respective taxes and this court will retain jurisdiction of this case, regardless of the addition of the proposed language.

J. Conclusions of Law IV – Martial and Non-marital Property Award to Former Wife: Objection, speculation. Former husband moves for amended changes but does not provide any basis for the change and continues to speculate about the ownership and benefit of property.

K. Conclusions of Law V – Marital and Non-marital Property Awarded to Former
Husband: It is the burden of the movant to bring enough evidence to support the requested change. Former wife does not know why he is entitled to the US bank accounts or that she should pay $100,000 of the debt that were not determined to be for a marital purpose. Former husband has kept all of the real estate in the United States and has at least three unencumbered properties, 100 Sawkill Avenue and 1708 Glenwood Avenue worth total stipulated value of $560,000. This is in addition to the land in Wisconsin and the valuable Dynamoe prints.

IV. STAY OF EXECUTION

The Court has granted the Respondent his stay of execution in until this hearing. Respondent denies this request, but would agree to place any amount recovered into a trust until after the decision is made. The respondent has the burden of proof to show that a stay of execution is necessary, but does not bring forth any evidence that he cannot attempt to exhaust his financial avenues. He may simply sell a valuable item or take out the money in a bank or brokerage accounts. Respondent has been alleged that Joyce Johnson was able to sell his Wisconsin property and secure funding. The only alternative does not have to be the speculative possibility of not being able to secure another loan on the property, while continuously giving $100,0000 or more to friends and not fully maximizing the potential of his rental properties.”


 DATE: October 3, 2012 BY: Su-Mei Kang Ming

 

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(36) Respondent’s Memorandum for the October 8, 2012 hearing on Respondent’s Post-Trial Motions (October 8, 2012) See divorcebook.html, chapter 44.

“Chester Mack File No. 27 FA 11-XXXX

Findings of fact to be corrected

1. The amount of marital debt

On page 5, Judge Jensen wrote: “ 18. Prior to trial, the parties disagreed regarding the marital debts in this matter. In order to clarify these issues, the court used Petitioner’s Pre-hearing statement balance sheet to facilitated discussion and achieve agreements regarding the debts. Using this process, the parties arrived at the following agreements: The Advanta debt is $2,630.50; the Citybank Business card debt is $12,001.85 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116); and the debt on the Menard’s credit card ending in account # ending in 5093 is $1,893.52 (Exhibit 133).”

The debts identified here total $16,525.87. The total marital debts, as identified in exhibits introduced at trial, totaled $324,212.70. We need an accurate amount of marital property - mainly debt - so that it can be equitably and fairly divided. Assigning 100% of the debt to the husband does not meet that test.

2. Misstatements of marital assets

On page 5, Judge Jensen wrote: “ 19. ... The parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of 1715 Glenwood Avenue is $173,000 $110,000 (meaning no equity). The parties agreed that these two Glenwood properties were entirely marital.”

There are two problems here. 1. The value of 1715 Glenwood Avenue was agreed to be $110,000, not $173,000. 2. The parties never agreed that the apartment building at 1708 Glenwood Avenue was “entirely marital” property. It was entirely non-marital.

3. Spousal maintenance

On page 15, Judge Jensen wrote: “Wife is a 56 Year-old immigrant from China who has not mastered the English language, even to a moderate degree. She worked at Target for a short time until a work injury ended that job .... Lacking medical insurance in the US, wife frequently travels back to China for medical treatment. She is currently unemployed and receives at most $300 in retirement income from China.”

Her mastery of English: Judge Jensen has never heard Rose speak English and, therefore, his conclusion is unwarranted. We conversed in English in 2000. She has since lived in the United States for eleven Years. She has taken English as a Second Language courses. She worked three and a half Years at Target. I have a sound recording of her speaking English.

Rose currently has financial aid to pay her medical bills in Minnesota - Sage?

Her recent filings disclose that she has $780 in monthly income.

Judge Jensen does not take into consideration her future income potential as a former hotel general manager in China. He neglects the potential for her to earn income by renting her two apartments in Beijing. He neglects the possibility of getting Social Security disability if she is judged unable to work.

The judge neglects the provisions of Minnesota statute 518.552 (g) which requires him to take into consideration “the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.

Respondent’s initial post-trial motion argues that Petitioner’s stated living requirements were overstated.

4. Dissipation

On page 19, Judge Jensen wrote: “ The record also reflects that husband loaned a not insignificant amount of money to this person, on many occasions, with no seeming legitimate effort to recover the loan proceeds.”

The loan agreements put into evidence by Petitioner as Exhibit 12 indicates a serious intent to recover the money as loans. Otherwise, the judge has no basis for saying no effort was made to collect them.

Evidence given in testimony showed that much of the dissipation came about by forgery and unauthorized use of credit cards over which Respondent had no control. If he had gone to the police and put Ms. Johnson in prison, that would have jeopardized recovery of the loans which were promised to be repaid.

Respondent received $113,000 in insurance proceeds from his brother in February 2010. These were non-marital funds. The amount more than covers the dissipation claim. Therefore there was no dissipation of marital assets because this money was not marital.

Respondent had a credible basis for believing that the loans would be repaid and still believes that some of the money will be repaid.

On page 19, Judge Jensen wrote in footnote 12: “ Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation.”

The reference to “his less than complete cooperation regarding discovery” is completely unsupported by facts introduced during the trial. Respondent’s latest affidavit offers a thorough account of the parties’ respective cooperativeness during discovery. Petitioner had copies of most of Respondent’s financial documents taken from his office without permission. She made no attempt to produce a total of dissipated assets. It was, instead, the respondent who offered such exhibits into evidence at the trial.

5. Assumption of debt

a. On page 20, Judge Jensen wrote under division of marital property: “He (husband) has also agreed to assume the debt against the property (1702 Glenwood Avenue.

There was no such agreement.

b. The judge neglects to discuss marital debt which is, by far, the largest component of this couple’s marital property.

6. Division of non-marital property

On page 23, Judge Jensen wrote: “ Wife is in poor health and suffers from recurrent cancer among other health problems; is Chinese with little command of the English language; has a limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited.”

As previously discussed, the statement that wife has “little command of the English language” is completely unsupported by the facts.

Wife does not have “a limited work history”. She was general manager of two hotels in China and head of the hotel division of China Everbright Corporation, China’s first corporation. Such management skills might still be in demand.

She has prospects for “an improved economic status” if she sells her non-marital apartment in China worth $250,000 or if she rents it. The same is true of a second non-disclosed apartment near the Beijing zoo.

Why is husband required to mortgage or sell his non-marital real estate to pay for debts incurred during the marriage plus a $50,000 cash award when wife is not required to do likewise?

Why does not wife’s income prospects take into consideration the possibility of obtaining rent from her two Beijing properties (one of which has recently been rented) when husband’s income assumes such rent?”

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(37) The Trial-Court Judge’s Decision regarding Respondent’s Post-Trial Motion for Amended Findings of Fact/ Conclusions of Law or, Alternatively, a New Trial (December 28, 2012) See divorcebook.html, chapter 47.

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

In Re the Marriage of: File No. 27-FA-11-XXXX

Rose Fen Mack
Petitioner

ORDER

and
Chester Arthur Mack
Respondent

________________________________________________________________

The above-entitled matter came on before me on October 9, 2012 on the parties’ various motions the details of which are set forth herein. Respondent was self-represented and Su-Mei K. Ming, Esq. appeared on behalf of Petitioner. Based on the written submission, the specific portions of the record mentioned therein, and the attached Memorandum, I issue my order as follows.

Respondent’s motion to amend Finding 10 of the July 20, 2012, Judgment and Decree is granted. See Amended Finding 11.

Respondent’s motion to amend Finding number 11 and 13 of the July 20, 2012, Judgment and Decree is denied.

Respondent’s motion to amend Finding number 18 of the July 20, 2012, Judgment and Decree is granted. See Amended Findings 13, 50, 51, 52, and 53.

Respondent’s motion to amend Finding 19 of the July 20, 2012, Judgment and Decree to delete the language suggesting that he agreed to pay the encumbrance against 1702 and 1708 Glenwood is denied. The request to delete the finding that both 1715 and 1719 Glenwood are entirely marital is denied. Respondent’s motion to amend Finding 19 to reflect a different value for those properties is granted. See Amending Findings 14 and 15.

5. Respondent’s motion to amend Conclusion of Law II is denied.

Respondent’s motion to amend Conclusion of Law IV is granted regarding US Bank account #s ending in 3556 and 2032. See Amended Conclusion V. 4. The motion is denied in all other respects.

Respondent’s Motion to amend Conclusion of Law V is granted except for the request to have Petitioner assume $100,000 of the marital debt. The other requests are reflected in the Amended Findings of Fact.

Respondent’s motion to amend Conclusion of Law VII is granted. See Amended Conclusions VI and VII.

Respondent’s Motion to add Conclusion of Law XIV is granted. See Amended Conclusion VII.

Dated: December 28, 2012

Stephen F. Jensen
Judge of the District Court

 

File No. 27-FA-11-XXXX

MEMORANDUM

Introduction

Respondent seeks wholesale changes in the Findings portion of the parties’ Judgment and Decree and challenges specific property awards, along with the duration of the maintenance award. Before addressing his specific concerns, I need to discuss my serious concerns regarding Respondent’s veracity. I will start by focusing on the approximate $114,000 in life insurance proceeds that Respondent received during the marriage. During trial Petitioner claimed that Respondent dissipated these proceeds. Respondent disagreed and adduced a number of exhibits to support his contention that he spent all of the insurance policy proceeds on pre-existing marital debts. The debt payment theme was consistent with Respondent’s earlier, unsolicited October 21, 2011, letter to Referee Alice Raleigh in which he claimed that, “A year and a half ago, I used the proceeds of a life-insurance policy worth $113,000 to pay off debt owed at the time.” ¹ Now, as part of his post-trial motions, Respondent suggests that the life-insurance policy was not used to pay debts, but was the source of the money that he gave to his ex-wife (referred to at trial as “Ms. Johnson”):

It is also error to assume that the money allegedly dissipated to Ms. Johnson came from marital funds. The Petitioner alleges, on the basis of Exhibit 19, which contains an email from Respondent dated December 5, 2011, that Respondent admits to having dissipated $89,000 in assets. However, the Respondent in February 2010 became the beneficiary of a life-insurance policy worth $114,000. This was the Respondent’s non-marital property. That insurance money, dispersed during the next year, more than covers the $89,000 allegedly dissipated to Ms. Johnson.

(Post-trial Motion, p. 23-24 ¶23)

(Footnote 1 This unsolicited letter to Referee Raleigh was just one of many that caused much consternation for Petitioner and her attorney and contributed to increased counsel fees.)

In addition to this example regarding his substantive arguments, Respondent’s post-trial motion substantially misrepresents what occurred during the trial. He argues that the time allowed for witness presentation greatly favored Petitioner and disadvantaged him. He further contends that he and his witnesses consumed just two and a half hours of trial time while Petitioner and her witnesses had nine hours. Nothing could be further than the truth. I kept track of the time and Respondent used at least 50% of the trial time, although not wisely. He spent far too much of this time on unproductive cross-examination, a point that I tried to impress upon him numerous times when I urged him to end his unproductive cross and save more of his time for direct.

Respondent includes the following fact assertion in support of this contention that he had insufficient time to present his case: “When the respondent complained of insufficient time to present testimony, the judge gave him the final ten minutes but then abruptly cut him off and ended the trial when respondent offered certain testimony.” (page 40, ¶ 2) This too bears no resemblance to what actually transpired. Respondent had already rested his case before this final “ten minutes”. Even though he had rested his case, I gave him the final ten minutes to present additional testimony if any he had. The record will reveal that a good portion of that ten minute span was dominated by the same problem that plagued the trial: Respondent’s repeated reference to mismarked exhibits. More important, the record will reveal that Respondent stopped offering testimony long before the ten minutes expired and spent the remainder of the time advancing closing arguments. It is pure fabrication to argue that I cut him off while he was attempting to offer testimony.

In addition to veracity observations, it is important to understand the general theme that drove my decision, which should be kept in mind as the analysis unfolds. “In dissolution cases, the court sits as a third party, representing the citizens of the State of Minnesota to see that a fair property distribution is made. Karon v. Karon, 435 N.W.2d 501, 503 (Minn 1989).” Miranda v. Maranda, 449 N.W.2d 158, 165 (Minn.App. 1989) Maranda and Karon focus on the fairness of the overall distribution, not the fairness or correctness of individual components. This key nuance was explained as follows by the Court of Appeals in the unreported case of Knutson v. Knutson, 2003 WL 21788984 (Minn. App. 2003):

In focusing solely on constituent elements of the property settlement, both parties overlook the fact that this court’s (Court of Appeals) review centers not on the disposition of individual items of marital property, but rather on the equity of the overall property division. See, e.g. Prahl v. Prahl, 627 N.W.2d 698, 705 (Minn. App. 2001)

I attempted to craft an overall fair award and none of the individual property award components were determined in a vacuum. Respondent faired very well in my analysis regarding some of Petitioner’s claims, and not so well regarding others. The same applies to Petitioner. The manner in which I distributed assets (along with the spousal maintenance award) and the ability to pay. ² The manner in which I resolved disputes regarding the marital and non-marital components of certain assets cannot be isolated from the manner in which I distributed other assets/debts and determined maintenance.

(Footnote 2: A district court may apportion to one party a substantial amount of marital debt or the debt in its entirety. See Lynch v. Lynch, 411 NW. 2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts); Jones v. Jones, 402 N.W. 2d 146, 149 (Minn. App. 1987) (district court’s apportionment of debt upheld where husband voluntarily incurred exorbitant debts and filed to show any reason why wife should be forced to pay half); Maher v. Maher, 393 N.W. 2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay the parties’ debts given his steady source of income); Justis, 384 N.W. 2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children). Additionally, where husband has incurred most of the marital debts without consulting his wife, this court has upheld apportionment of entire marital debt to the husband. Dahlberg, 358 N.W. 2d at 80. Quance v. Quance, 1999 WL 1216649 (Minn. App. 1999).

I strove to distribute assets and debts, plus award maintenance, in a manner that gives both parties a decent chance to start their separate, post-dissolution lives, considering their ages and infirmities. For example, Respondent complains about the debt distribution but ignores the fact that saddling Petitioner with a larger share of the marital debts, which she could not pay, would be a pyrrhic victory at best. Unless lenders agreed to absolve Respondent of responsibility, they would remain able to collect from him any debts assigned to Petitioner and he would be left with a contribution/indemnity claim against Petitioner, at best. Furthermore, had I exercised my discretion to assign a larger share of debts to Petitioner, I would have awarded her more spousal maintenance and/or increased her property award.

As another example, Petitioner asked me to award a large dissipation claim but I did not do so. She also asked that I turn a much larger percentage of Respondent’s non-marital property into marital property by virtue of her alleged contributions. Had I been more generous regarding the value of her contributions, Petitioner would not have fared any better in the end. Instead, for every additional dollar of property awarded to her via her contribution theory, Petitioner would have received a corresponding reduction in her case property award, including the extent to which I exercised my discretion to award to her a portion of Respondent’s non-marital property.

There are additional themes that must be kept in mind as the analysis unfolds. Respondent frequently asks that I amend certain findings to reflect “facts” that were not introduced into evidence. This I cannot do. Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) explains that in considering motions for amended findings, the trial court may neither go outside the record, nor consider new evidence. For example, Respondent wants me to factor into Petitioner’s needs versus income equation the fact that she owns two condominiums in China which Respondent speculates could be rented, thus improving Petitioner’s prospects of meeting her needs without spousal maintenance. No evidence was introduced at trial regarding the second condominium, nor the rentability of the first. ³ See Exhibit 300, the parties’ partial settlement agreement, which states that, “Wife is being awarded her nonmarital property as follows: Condo [singular] in Beijing, China. “ Respondent admits on page 6 of his submission that evidence regarding the alleged second condominium was not adduced at trial:

(Footnote 3: It is also important to remember that Petitioner has no health insurance in the United States and returns to China for medical treatment. Even if Respondent had provided evidence of the rentability of the one apartment in China, before arriving at a “net” rental figure, I would have needed to factor in the cost of a hotel or other accommodation for Petitioner when she travels to China for medical reasons.)

Wife also has a second condominium in Beijing, which may be a life estate, not disclosed during the proceeding, with an unknown value. Wife has in the past received rental income from this second condominium (emphasis added)

Respondent’s motion and supporting arguments refer to many more “facts” that were never introduced into evidence. For example, as discussed in the initial memorandum, Respondent allowed his friend/ex-wife, Ms. Johnson? to live in rental property without paying market rent, provided her with significant amounts of cash, and let her use his credit cards. Petitioner claims that the reduced rent, cash payments and credit card usage constituted gifts to a paramour, while Respondent claims that they were loans. If they were loans, there was no credible evidence of legitimate evidence to collect the loans. In the “argument” section of his post-trial submission, Respondent asserts numerous statements of “fact” regarding this Johnson situation and repayment considerations that were not introduced at trial. See paragraph numbers 15-16 on page 21.

(Footnote 4: Respondent now asserts, for the first time, that Ms. Johnson is his ex-wife. (p. 23, ¶ 22.)

Petitioner’s post trial submissions also resort to “facts” not introduced at trial. She asks the court to award attorney’s fees even though her initial request was denied in part because I found that Respondent lacked the resources to contributed to her fees. (See the Memorandum attached to the Decree.) In her post-trial renewed request for fees, Petitioner claims that Respondent “hangs art valued in the six figures [and] pays for full time staff.” (Petitioner’s 9/12/12 Memorandum, p. 1) No evidence was introduced at trial to the effect that Respondent owns six figure art ? and there was no evidence that he pays for “full time staff.”

(Footnote 5: Respondent’s pre-hearing statement references one Disney print worth $50,000.)

If Respondent had secured a transcript to facilitate the review process, as he should have, he would have been required to cite by page and paragraph the testimony/exhibits that support each of his factual assertions, plus summarize the evidence that supports the court’s findings. “(A) proper motion for amended findings must both identify the alleged defects in the challenged findings and explain why the challenged findings are defective.” Lewis v. Lewis, 572 N.W. 2d 313 (Minn. App. 1997) “By analogy, this requirement is similar to the process for challenging findings on appeal, which require the party challenging a finding to summarize the evidence that supports the challenged findings. See Minn. R. Civ. App. P. 128.02, subd. 1(c).” Lewis, supra. If the motion for amended findings and conclusions is indeed analogous to the process for challenging findings on appeal, then the party bringing the post-trial motion should be required to limit his/her factual assertions to facts/matters that were introduced at trial. ?
The unreported case of Schrock v. Schrock, C6-01-518 (Finance and Commerce 12/17/01), explains that, “A motion to amend the findings must be made on the existing files, exhibits, and minutes of the court. Minn. R. Civ. P. 52.02.” ?

(Footnote 6: “When a party challenges a trial court’s findings, the evidence ‘tending directly or by reasonable inference to sustain the *** findings * shall be summarized” by the party challenging the findings. Minn. R. Civ. App. Pl 128.02 , Subd. 1(c); c.f. Minn. Stat § 645.4, subd. 16 (1998) (stating, in context of statutory interpretation, “[s]hall’ is mandatory”) When summarizing the evidence supporting a trial court’s findings, the party challenging the findings must cite the portions of the record containing those findings. See Minn. R. Civ. App. P. 128.02, subd. 1(c) (stating each statement of material fact in appellant’s brief “shall” be accompanied by cite to record); Minn. R. Civl. Appl. P. 128.02, subd. 2 (requiring respondent’s brief to conform to same requirements as appellant’s brief); Hecker v. Hecker, 543 N.W.2d 678, 681-82 n. 2 (Minn. App. 1996 (noting “material assertions of fact in a brief are ... ‘particularly important’ where ‘the record is extensive’) aff’d 568 N.W.2d 705 (Minn. 1997).” Vangsness v. Vangsness, C0-99-1551 (Finance & Commerce 3/27/00).)

(Footnote 7: I fully understand that an unreported case has no precedential value, but such cases often remain instructive.)

Respondent also challenges certain numerical findings as being incomplete, but ignores the Memorandum attached to the decree. The numeric findings cannot be read in isolation from the Memorandum or vice versa. Rule 52 explains that findings required in court tried cases may include those set forth in accompanying memoranda. (In order to make the reading easier for Respondent, I rearranged the Amended Findings and reduced the amount of findings set forth in the Memorandum and added the material to the numeric findings.)

Requests to amend specific findings

Finding 10

Numeric Finding 10 referenced domestic abuse between the parties. Respondent wants Finding 10 amended to reflect that there is not a no-contact order currently in effect. I scoured my minutes along with the exhibits and could not locate where this nuance was raised at trial. Nevertheless, I am allowed to take judicial notice of court orders found in MNCIS. I looked at the subject case and found that Respondent’s assertion is correct. I will amend Finding 10 as requested.

Finding 11

Respondent asks that I re-write Finding 11, but most of what he requests is already set forth in the combined numeric findings and memorandum. For example, Respondent wants me to include in finding 11 that “Husband has little in the way of liquid assets.” I already found in finding 16 that “The parties have various bank accounts with nominal value,” and added in the Memorandum that, “both parties have little, if anything, in liquid assets.” (Memorandum p. 13)

Respondent wants me to find that “considering his age, [he has] no reasonable prospect of employment.” I have already found as part of the Memorandum that, “Husband is 71 and not a likely candidate for significant future employment.” My language and the language proposed by Respondent represent a distinction without a difference. I will not substitute Respondent’s language for mine and will not address the dozens of similar requests to rewrite concepts that are already found in the Judgment and Decree.

In addition to Respondent’s proposal that I re-write what I already included, Respondent seeks to amend Finding 11 by adding facts not adduced at trial, including the contention that “it will be difficult or impossible for Husband to borrow [money]” or that he would ‘be forced to sell property at a ‘fire sale’ price in order to raise case. Not only did Respondent not adduce such facts at trial, but it would be reasonable to infer otherwise from the admitted facts. For example, the facts disclose that a portion of Respondent’s Pennsylvania real estate is worth more than $280,000, with no secured debt adduced during the trial. Exhibit 300 revealed that Respondent also owns property in Port Wing, Wisconsin, and there was no evidence that it is encumbered. Also, there was no evidence adduced at trial to suggest to suggest that Respondent could not obtain funds secured by either or both of these properties, or that selling either at this point in time would yield a “fire sale price.”

Finding 13

Respondent proposes minor amendments. the first proposed amendment would add a legal description for his Pennsylvania property, but Respondent fails to cite an admitted exhibit in which this description is contained. The second proposed amendment refers to Petitioner’s alleged second condominium in Beijing. I have already explained (and quoted Respondent’s admission) that evidence regarding this alleged second condominium in China was not adduced at trial. Respondent suggests that this second condominium is referenced in Exhibit 369, but that exhibit was not introduced at trial, nor do my minutes or those of my clerk reflect that it was even offered. ?

(Footnote 8: Respondent failed to procure a transcript for me to use.)

Respondent requests that I amend Finding 13 to reflect that the 1995 Mercury is worth $500. He cites Petitioner‘s Pre-hearing Statement as evidence, but he did not offer that statement at trial. In addition, my finding that the value of the 1995 Mercury was “nominal for purposes of an equitable property division” would remain accurate even if there had been evidence in the record that it was worth $500.

Finding 18

This part of Respondent’s motion demonstrates the manner in which Respondent continues to unreasonably contribute to the length and expense of these proceedings. He asks that I find the debt against 1715 Glenwood Avenue to be $175,147.90, citing his Exhibit 208, but the parties stipulated that the debt was $173,000 (Exhibit 300) and I used that figure in my memorandum (page 21). Respondent asks that I use $84,017.51 as the debt against 1702 Glenwood, citing exhibit 209. I used $86,300 (Finding 13.a.), which is about $2,000 more than Respondent wants to use now, but I will be happy to accommodate him and decrease the number to $84,017.51.

Respondent wants me to add $8,356.42 as the balance owed on the First Bank of Omaha VISA, citing Exhibit 200. My finding identified the lender as “First national bank of Omaha visa charges” and referenced Exhibit 200, but did not set forth the balance. I will add the balance and change the name of the lender to “First National Bank Omaha.” I agreed with Respondent that the Chase balance should be added. He argues that it should be $5,233.49, but my notes show that the parties agreed to use $3,728 (and his pre-hearing statement suggested that the debt was $4,339.) Respondent wants me to use $3,737.66 for the Advanta loan balance, but my minutes show that the parties agreed to the $2,630.50 figure shown in Finding 18.

Respondent wants me to include $3,723.32 for the Citibusiness debt citing exhibit 132. Exhibit 132 is the March 2011 statement for the account ending in #7415. It shows a new balance of $3,723.32. That date is close to the spring 2011 Initial Case Management Conference date, but my Finding 18 opted for the April, 2012, balance figure of $12,001.85. The trial court has discretion to vary the valuation date and I exercised my discretion to choose the later date because I was trying to construct an award that more reasonably reflected what the parties would need to pay to retire the debt. Remember, as I stated above, I was trying to fashion a global award that would allow the parties to start afresh. Using outdated account balances would hardly advance that goal.

My Finding 18 reflected the parties’ Menards debt, but did not set forth the balance. Respondent cities Exhibit 133 for the proposition that the balance was $190.62, but Exhibit 133 reflects a balance of $1,893.52. (His pre-hearing statement identified it as just $70.)

Finding 18 did not reference the two unsecured line of credit balances at US Bank: $39,628.01 and $5,976.67. They should be added. My decision did not assign these debts to either party and the amended Decree does so.

Finding 19

Respondent requests that I strike from Finding 19 the reference that Respondent agreed to “pay all encumbrances on these Glenwood properties.” I intended the phrase “these Glenwood properties” refer to 1702 Glenwood and 1708 Glenwood, not 1715 and 1719. My finding regarding 1702 and 1708 is the exact language shown on Exhibit 300, the parties’ partial settlement agreement. See number 3 on the list: “Husband is awarded the following real estate [1702 and 1708] and shall pay all encumbrances.” (emphasis added) This finding will not be changed.

Respondent also requests that I strike the finding that 1715 and 1719 Glenwood are entirely marital and state that only 1715 Glenwood is entirely marital. Once again my finding comes from the parties’ agreement. Paragraph 6 of Exhibit 300 states that, “these [1715 and 1719] are both entirely marital.” This finding will not be changed.

Requests to amend the conclusions of law/award paragraphs of the decree

“Dissipation”

Respondent correctly cites subdivision 1 of section 518.58 as setting forth the necessary elements for a successful dissipation claim, plus the fact that Petitioner bears the burden of proof regarding her dissipation claim. ? However, Respondent ignores two other key aspects of the statutory scheme for fashioning property awards. First, even in the absence of a successful “dissipation” claim, the court is required to consider, among other factors, the extent to which each party contributed to the acquisition, preservation, and depreciation ... of the marital property. Id. Second, “marital property” is defined to include all property acquired during the marital relationship, and this includes income earned by either party regardless of whose name appears on the paycheck or other payment vehicle. Minn. Stat. § 518.003, subd. 3b.

(Footnote 9: Although I titled one section of my Memorandum as “Dissipation”, that was not intended to suggest that the claim was righteous. After inserting the title, I went on to explain in detail Petitioner’s shortcomings in meeting her burden of proof in this regard, including: “the problem I am having here is that wife did not offer credible evidence to support a specific dissipation number that I could in my marital asset division. In addition, wife is making inconsistent claims.”)

The record credibly demonstrated that Respondent allowed his friend and ex-spouse, Ms. Johnson, to reside in rental property at below market rent (or for no rent at all.) ¹? This means that the marital estate was deprived of this rental income, thus depreciating the overall marital estate. The same holds true regarding cash given to Ms. Johnson from time to time and her frequent use of Respondent’s credit cards. Whether or not such payments and credit card usage constituted gifts or loans, there has been no legitimate attempt to collect them. By taking such action, Respondent failed to preserved the marital estate in amount equal to all the unpaid or underpaid rent, plus the cash payments and credit card usage. Stated differently, but still using statutory language, by taking such action Respondent depreciated the marital estate. The unreported case of Luoma v. Luoma, C3-01-704 (September 18, 2011) WL 1085094 (Minn. App. 2001) explained this nuance when it held that without finding a “dissipation” in so many words, the trial court, “may still consider the parties’ respective efforts in preserving marital property and there is no presumption that they both contributed equally to the preservation.”

(Footnote 10: As just one example, Respondent testified that he allowed Ms. Johnson to live in the duplex starting in November 2010 and she stayed there until July 2011. Respondent testified that she only paid “a couple hundred dollars” in rent even though the unit rents for $916 per month. That represents at least $5,600 in rent for which Ms. Johnson paid “a couple hundred dollars.”)

Respondent argues that Petitioner failed to carry her burden of proving a dissipation claim because she did not prove that the transfers to Ms. Johnson (or the rent relief) were done in anticipation of filing for divorce. (p. 23, ¶ 22) Even if Respondent is correct in this regard, it does not detract from the fact that the marital estate was still reduced in value equal to such transfers, credit card usage, and/or rent relief. It was consistent with my statutory discretion (and direction I might add) to consider such activity when fashioning a just and equitable award. I should also add that Respondent admitted that he “dissipated” marital assets. Toward the end of the trial Respondent stated the following regarding the parties’ marital estate: “some of it was dissipated by me foolishly making loans [to Ms. Johnson].”

Respondent attempts to moderate the impact of these actions that decreased the marital estate by arguing that he “gave his wife and daughter Violet more than $100,000 during the marriage over and above what was needed for household expense including money for Violet’s college tuition.” (p. 19, ¶ 10) Respondent apparently does not understand, or refuses to accept, that if this money came from employment during the marriage or from income earned on properties that he actively managed during the marriage, the money was marital property, not his property, and he was in no position to “give” it to his wife: it was equally hers the moment he received it. It was Respondent’s burden to overcome that presumption and he did not offer any evidence that the money in question came from non-marital sources in existence before the parties married or from another post-wedding day infusion of non-marital capital. Instead, he argues that, “It is also an error to assume that the money allegedly dissipated to Ms. Johnson came from marital funds.” (p. 23, ¶ 23) That was not my “assumption” - rather, it represented my application of the statutory presumption.

I repeated in a footnote above the concerns expressed in my initial Memorandum that wife was making inconsistent claims regarding the loans and/or cash to Ms. Johnson. Respondent is doing the same thing. He argues that there was no dissipation regarding the $86,000 that he identified as flowing to Ms. Johnson (p. 23, ¶ 20), but ignores the fact that if these were legitimate loans collectible in due time, it necessarily follows that if these “assets” are awarded to him in the Decree, he can use the money collected from Ms. Johnson to pay the debts assigned to him or fund the installment property award to Petitioner. The property awarded to him necessarily increases by an amount equal to the Johnson and associate loans (at least $86,000). ¹¹

(Footnote 11: I gave Petitioner the option to have these loans assigned to her or accept the $50,000 in installment payments ordered as part of the division. She chose not to take the loans and thus all the money loaned to Ms. Johnson is available to him.)

Conclusion II - Maintenance

I ordered Responded to pay $500 per month in permanent spousal maintenance. He asks that I limit his $500 monthly obligation to just six (6) months. This I cannot do because subdivision 3 of section 518.552 states that, “Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for future modification.” (emphasis added) No credible evidence was adduced at trial upon which I could find with certainty that Petitioner’s need for maintenance will disappear after six months and thus Conclusion I will not be amended as Respondent requests.

Conclusion IV

Respondent asks that I amend conclusion IV by striking the award to Petitioner of his US Bank accounts ending in numbers 3536 and 2032 and the award to Petitioner of the parties’ Qwest/Century Link stock. After further consideration, I will grant the request regarding these two US Bank accounts in his name and which contain nominal funds.

Debts

Respondent objects to the fact that I have ordered him to pay the bulk of the parties’ debts, which he argues exceed $350,000. In making this argument Respondent ignores a number of key points. First, he ignores the fact that the total amount of debt includes $84,017.50 in debt secured by his non-marital property at 1702 Glenwood. Because the 1702 Glenwood property is worth $160,000 and will be retained by Respondent, this part of the court’s debt apportionment/property award represents a net gain. Second, he ignores the fact that $173,000 of the total debts represents a debt consolidation loan that he chose to impose on the lone Glenwood property that is marital in nature - 1715 Glenwood. No accounting was introduced by Respondent to explain how much of this consolidated debt was marital in nature versus non-marital debt that was imposed against a marital asset via the consolidation loan. It is also important to understand that Respondent is also being awarded the 1715 Glenwood property valued at $110,000. Third, Respondent has at least $580,000 of unencumbered non-marital real estate and case law explains that the trial court may exercise its discretion to assign debts to the party with greater ability to pay. I am awarding wife a small portion of the debts, but even though the portion is small, the amount of debts I am assigning to her exceeds the total liquid assets in her possession. Fourth, Respondent’s argument ignores the fact that the parties’ debts would be much lower today had he not allowed his former spouse to live in rental property without paying rent, not given her significant gifts, not allowed her to use his credit cards, and not loaned her significant amounts of money for which no legitimate attempt has been made to collect on the loans. The manner in which I exercised my discretion to apportion the debt comports with the case law. See the unreported case of Quance v. Quance, 1999 WL 1216649 (Minn. App. 1999), which contains a good summary of the reported cases on the topic of debt distribution:

A district court may apportion to one party a substantial amount of marital debt or the debt in its entirety. See Lynch v. Lynch, 411 NW. 2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts); Jones v. Jones, 402 N.W. 2d 146, 149 (Minn. App. 1987) (district court’s apportionment of debt upheld where husband voluntarily incurred exorbitant debts and filed to show any reason why wife should be forced to pay half); Maher v. Maher, 393 N.W. 2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay the parties’ debts given his steady source of income); Justis, 384 N.W. 2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children). Additionally, where husband has incurred most of the marital debts without consulting his wife, this court has upheld apportionment of entire marital debt to the husband. Dahlberg, 358 N.W. 2d at 80.

Although I will not make significant changes to the debt allocation, the Amended Decree makes some adjustments and apportions additional debts to Petitioner. I have made it clear that she is responsible, to the exclusion of Respondent, for all tax liability incident to the sale of her condominium in China; I ordered that she be responsible for all but $3,000 of her medical bills; and I made her responsible for the smaller of the two US Bank unsecured credit lines.

SWJ

 

 

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of: Court File No. 27-FA-11-XXXX

Rose Fen Mack

Petitioner


AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW
ORDER FOR JUDGMENT, AND JUDGMENT AND DECREE

Chester Arthur Mack

Respondent

________________________________________________________________

The above entitled matter came on for trial before the Honorable Stephen W. Jensen at the Hennepin County Family Justice Center, Minneapolis, Minnesota, on May 7th and May 8th, 2012, and later came before the court on Respondent’s motion for amended findings. Petitioner appeared in person and was represented by Su-Mei Kang Ming, Esq. Respondent appeared in person and was self-represented. Based upon all of the evidence presented, the exhibits, the specific portions of the record mentioned herein, and the Memorandum attached hereto, and the Memorandum in response to the motions for amended findings, the court issues the following:

FINDINGS OF FACT

1. The parties’ names, addresses, birth dates and ages are as follows:

Petitioner:
Name: Rose Fen Mack
Previous Name(s): Rose Ying Mack, Ying Min
Address: 1702 Glenwood Avenue, Minneapolis, 55405
Birth date: April 5, 1956

Respondent:
Name: Chester Arthur Mack, Junior
Also known as: Chet Mack, Chester A. Mack
Previous Name(s): None
Address: 1702 Glenwood Avenue, Minneapolis, 55405
Birth date: February 21, 1941

Petitioner is also referred to as Wife and Respondent is also referred to as Husband in this decree. The Social Security numbers of the parties have been filed as confidential information.

Petitioner is represented in these proceedings by:

Su-Mei Kang Ming, Esq.
Kang Ming Law Firm
8XXX Wayzata Boulevard, Suite 320,
Golden Valley, MN 55426

3. Respondent is currently self-represented, but had counsel at the beginning of these proceedings.

4. Petitioner resided in Minnesota 180 days prior to commencement of this proceeding, and was a resident of Hennepin County at the time of commencement of this proceeding.

5. The parties were married on January 28, 2000 in the City of Beijing, Country of China, ever since have been and still are married.

6. There has been an irretrievable breakdown of the marriage relationship between the parties. The parties have been separated since February 18, 2011.

7. No separate proceeding for dissolution or legal separation is pending in any court in this state or elsewhere.

8. Neither party has been a member of the armed forces of the United States.

9. There are no children born of this marriage. Petitioner has a non-joint daughter, Violet Mack, who has reached the age of majority.

10. Petitioner is not now pregnant.

11. The parties are not currently subject to a Domestic Abuse No Contact Order but in the past they were involved in a no contact order in Hennepin County Court File 27-CR-11-XXXX.

12. Respondent owns a non-marital four-plex at 1702 Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, State of Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to
Minneapolis, Minnesota.

There is an encumbrance in the approximate amount of $84,017.51. It has been appraised at $160,000 (Ex. 20) and I find that number to be reasonable.

13. The Respondent owns a non-marital nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

There is no encumbrance against that property,. The parties agreed that the value of 1708 Glenwood Avenue is $280,000. (Exhibit 300)

14. The parties own a marital duplex at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

There is an encumbrance against the property. The parties stipulated as part of Exhibit 300 that the debt balance was $173,000. If not for the stipulation, Exhibit 208 would have supported the somewhat higher debt figure of $175,147.90. The value of 1715 Glenwood and 1719 Glenwood together is $110,000.

15 The parties own two marital parcels at 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

16. Respondent owns non-marital property at 100 Sawkill Avenue, Milford, Pennsylvania. The legal description of this property was not introduced into evidence. The parties agreed that value of the Milford, Pennsylvania improvements and parking area is $280,000, which does not include the large adjacent acreage lot. (Exhibit 300) Petitioner is not making a marital claim to the large acreage from Respondent’s father’s estate that lies adjacent to the land on which the Sawkill house is located. This land has not yet been distributed.

17. Respondent owns non-marital property located in Orienta Township, City of Bayfield, near Port Wing Wisconsin. There is a dispute between the parties as to whether this land consists of 20 or 40 acres. A log cabin is also located on this property. Respondent’s interrogatory answers averred that this property had an estimated worth of $20,000. (Exhibit 24) The only legal description presented to the court is as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

There was no evidence that this property is encumbered.

18. Petitioner owns a non-marital condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552. No legal description was provided to the Court.

19. Respondent’s post-trial motion makes frequent reference to a second apartment owned by Petitioner in China, but there was no evidence of this property introduced at trial.

20. These properties provide varying degrees of net rental income.

21. Respondent’s Milford, Pennsylvania has been a drain on other resources/income. Exhibit 377 is the lease that allows Linda Davis to occupy part of the Milford property in return for which she pays $350 per month and does some maintenance work. Schedule E from the parties’ 2006-2010 tax returns shows that the Milford property produces less than $5,000 per year in rent. (Exs. 14-18) The combined taxes and utility costs exceed that rent by 100+%, without even factoring in other ownership expenses. (Id.)

22. The appraisal for Respondent’s 4-plex at 1702 Glenwood Ave. in Minneapolis suggests that the property enjoys a rental income stream of $32,640 per year, but that rosy figure has not been borne out by the actual rents generated between 2006 and 2010. 2006 appears to have been a particularly poor year, rent-wise, so I will exclude it from my analysis. During 2007 through 2010, the 4-plex averaged about $17,000 per year in rental income. The 2010 rental income was $16,545. Core expenses including taxes, insurance, utilities, and mortgage payments ate up over $14,000, and 2010 represented a year during which husband paid only approximately half of his normal mortgage costs. Adding other costs of ownership during 2010 produced a loss of over $2,000, even after backing out depreciation. The 4-plex produced useable net income only once in those five years and it was paltry - approximately $2,600. It should be noted that because one of the units has functioned as the parties’ homestead, the building might be profitable if that unit were rented out, but then Respondent would have to spend money on other housing.

23. The appraisal for Petitioner’s 9-unit apartment building at 1708 Glenwood suggests that it produces $57,000 per year in rental income, but the actual average yearly rent was $42,000 between 2006 and 2010. With no mortgage encumbering the apartment building, the complex produces, on average, over $9,000 per year in net income. With depreciation added back, the number rises to almost $13,000.

24. The parties’ duplex at 1715 Glenwood alternates between losing years and profitable years, but over a 5-year continuum, the duplex loses money. The rental picture would improve if the parties sold the duplex, but then a whopping deficiency judgment would be added to the mix. On balance, the four real estate holdings yield little combined yearly income to insert in the maintenance equation.

25. In addition to rental income, a question exists regarding the extent to which Respondent receives yearly dividends sufficient to fund maintenance. He owned shares of Gannett on the marriage date which paid dividends in excess of $300 per year between 2006 and 2008, but declined thereafter to $51 in 2010. (Exs. 14-18)

26. Respondent’s pre-marital Well Fargo shares paid a $208 dividend in 2010, which was the highest amount since he acquired the stock.

27. Respondent’s pre-marital shares in Arbitron pay a nominal dividend each year and his pre-marital shares in US Bank ceased paying dividends after 2009. (Id.)

28. Although Respondent’s pre-marital shares of PG&E paid an average of $500 per year, the stock was sold in May 2011.

29. Respondent’s Target shares paid a dividend of less than $200 per year, but that ceased after a significant portion was sold in May 2011.

30. Respondent’s pre-marital Germany Fund, which today may be called the Euro Equity Fund, paid small dividends through 2010.

31. The only security owned by Respondent that paid significant dividends was Wachovia Bank. It paid an average of $5,000 per year in 2006 and 2007, but the amount dropped precipitously to $145 in 2009. It appears that the Wachovia stock may have been sold, or rolled into Wells Fargo, a stock that Respondent owned prior to the marriage. No sale receipt was introduced at trial, but the acquisition of Wachovia by Wells Fargo may account for the increase in Wells Fargo dividends between 2010 and 2011, but still paltry in comparison to what Wachovia once paid.

32. Bottom line: Respondent’s dividends are now a fraction of what they were in the past, many of his stocks have been sold, and his dividend income will have little impact on his ability to pay maintenance because maintenance is paid out of future income and there is little evidence that Respondent will be enjoying significant dividend income.

33. The parties have an interest in Petitioner’s 401k, account (number unknown) valued at $5,000 as of May 8, 2012.

34. The petition alluded to the fact that Respondent has a pension interest, but Petitioner made no attempt to introduce evidence suggesting that any portion of this pension is marital. Respondent’s pre-hearing statement disclosed the following: “MSRS Pension. Earned before the Marriage.”

35. The status of the parties’ current equity holdings could have been better presented at trial. Neither party introduced into evidence current account statements for each equity position to document current value or the value on the valuation date (other than Wells Fargo for which more evidence was provided). I had to spend a considerable amount of time reviewing the documentation to determine the status on my own. Respondent’s Exhibit 302 as well as his prehearing statement attached the following values to following stocks:

Exhibit 302 Prehearing statement

Gannett - $4,721.20 a. $4,785
Arbitron - $2,916 b. $2,880
US Bank - $1,866.96 c. nothing
Target - $10,048 d. nothing
Europ, Equity - $645 e. nothing
PG&E - $13,548 f. nothing
Xcel - $24,120 g. $23,000
Wells Fargo - $12,942 ¹ h. $10,400
nothing i. $1,400

Footnote ¹ The figure $7,705.18 is used elsewhere herein.

Respondent’s interrogatory answers averred that the only stocks retained by the time of discovery included Wells Fargo, Gannett, Arbitron, and US Bank with a combined value “between $15,00 and $20,000. (Exhibit) Referee Raleigh’s March 28, 2012, Order required the parties to “account for all [property] transfers between January 1, 2010 and the date of her order”. Respondent did not provide this required accounting.

36. These stocks are in addition to the marital Qwest stock discussed in Finding 98.

37. A 1995 Mercury is titled in Respondent’s name. The fair market value is unknown, but nominal for purposes of an equitable property division.

38. The parties have various bank accounts with nominal value.

39. Petitioner’s Wells Fargo checking had a $100 balance as of April 15, 2011.

40. Petitioner’s Chinese Bank Accounts had a $400 balance as of April 15, 2011.

41. Respondent’s Wells Fargo checking had a $1,000 balance as of June 7, 2011.

42. Respondent’s US Bank checking account ending in 3556 had a balance of $1,249.23 as of April 18, 2011 (Ex. 391) and his US Bank checking account ending in 2032 had a balance of $500 as of April 29, 2011 and $6.94 as of May 4, 2012 (Exhibit 384).

43. Respondent’s US Bank checking account ending in 7969 had a balance of $721.28 as of May 4, 2011 (Exhibit 384) and his US Bank checking account ending in 5106 had a balance of of $453.99 as of May 4, 2012. (Exhibit 384)

44. The parties own miscellaneous personal property, household goods and furnishings, furniture, and appliances of nominal value that are not at issue herein.

45. The parties have numerous debts. At one point their Advanta debt was $3,737.66, but the parties agreed to use $2,630.50 (the difference between these two numbers would not affect my debt allocation and the balance was of 4/10/12 was $2,578.51 as shown in exhibit 388.)

46. Although the Citybank Business card debt was a little less than $4,000 in spring 2001, it grew to $12,001.85 during April 2012 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116) and I exercised my discretion to use the higher figure because it more closely approximates what must be paid.

47. The debt on the parties’ Menard’s credit card ending in account # ending in 5093 is $1,893.52. (Exhibit 133).

48. Although the amount is disputed, Respondent agreed to be responsible for the Citybank Business card, account # ending in 5466.

49. Petitioner has a Citi credit line ending in 2637 (Exhibit 360).

50. There was no agreement regarding the responsibility for the First National Bank of Omaha visa (Exhibit 200) with a balance of $8,356.40.

51. The credit card balance with Chase (Exhibit 387) was $3,278. ²

[Footnote: Respondent’s pre-hearing statement stated that the Chase debt was $4,339.]

52. The Menard’s credit card debt in account #5093 was $1,893.52.

53. The two unsecured lines of credit balances at US Bank were $39,628.01 and $5,976.67.

54. In 2007, Respondent borrowed $180,000 from Nation Star Mortgage in order to consolidate debts. He chose not to encumber any of his non-marital properties with this loan consolidation, but chose to encumber the parties’ lone marital real estate (1715 Glenwood) with the entire consolidated debt. (See interrogatory answers - Exhibit 24.)

55. Prior to trial the parties stipulated that Respondent would be awarded the Wunderlix Celluloid Prints, the Port Wing, WI, improvements and land, the Mercury Tracer, 1702 Glenwood Avenue (4-plex), and 1708 Glenwood Avenue (nine-unit). They also agreed that he would pay all encumbrances on the 1702 and 1708 Glenwood properties; and that the Petitioner would be awarded the condo located in Beijing, China. (Exhibit 300) The parties agree that the Petitioner’s 401k should be valued at $5,000, and that Wife’s medical bills totaling $6,000 as of May 1, 2012 constitute a joint marital debt.

56. Petitioner has health insurance available to her through the People’s Republic of China, Respondent receives Medicare. Neither party carries separate health or dental insurance plans.

57. Neither party receives any form of public assistance as defined by Minn. Stat. section 256.741.

58. Neither party is seeking a name change.

59. Petitioner seeks spousal maintenance, while Respondent makes no such request. Spousal maintenance is paid out of future income and earnings. There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.

60. Petitioner is a 56 Year-old immigrant from China who has not mastered the English language, even to a moderate degree. This is based on my observations during the trial. Often the litigant for whom the interpreter is needed demonstrates a keen understanding of English by answering questions before the interpreter even completes the translation. That did not occur here. Instead, instances occurred when the translation was cumbersome and Petitioner demonstrated confusion. Respondent’s post-trial submissions argue that she has a significant understanding of the English language and speaks it sufficiently well, but he did not adduce credible evidence regarding this during the trial. Petitioner worked at Target for a short time until a work injury ended that job. She suffers from serious health issues including recurrent cancer for which she has undergone long bouts of debilitating chemotherapy. She also requires regular insulin injections (the cause of which was not explained during the trial). Lacking medical insurance in the US, Petitioner frequently travels back to China for medical treatment. She is currently unemployed and receives at most $300 in retirement income from China. From a need-based perspective, Petitioner is a strong candidate for permanent spousal maintenance.

62. Petitioner contends that she needs $2,000 per month upon which to live. At no point in her testimony did she testify that this “need” number comports with the standard of living established during the marriage. There was plenty of testimony that the parties lived a frugal existence, but the record does not reflect whether the amount Petitioner claims she “needs” today reflects that frugality.

63. At the present time Petitioner resides with her daughter in Herndon, Virginia, when she is not in China. The down payment for her daughter’s townhouse, plus considerable additional funds for improvements and furniture came from the proceeds generated when wife sold the smaller of her two apartments in China. Petitioner’s answer to interrogatory number 9 states that her daughter was a joint owner of that smaller apartment. (Ex. 118) Petitioner has a bedroom in the Herndon townhouse for which she pays no rent - although she contends that her daughter is merely “loaning” her the money and that she must repay her daughter for the rent free living. Petitioner’s $2,000 “needs” budget includes $1,000 per month for rent, up from the earlier $800 figure in her trial exhibit. (Ex. 5) It should be noted that when Respondent tried to inquire into this rent-free living arrangement, Petitioner refused to answer the interrogatory, claiming that Respondent sought irrelevant information. (Ex. 118, #26)

64. Unless unusual circumstances exist, the standard of living established during the marriage is a mutual standard, which appears to be the case here. Although Respondent did not offer any trial evidence regarding his monthly budget or “needs”, Petitioner introduced into evidence his interrogatory answers which revealed a $2,070 monthly “needs” budget. (Ex. 24A, answer to #13)

65. Respondent is a 71 year-old retired person with less than $2,000 per month in combined pension and social security income plus steadily mounting debts. He clearly lacks sufficient retirement and social security income to meet his needs and still contribute to Petitioner’s needs in a significant amount. See the discussion above regarding his limited dividend income and limited net rental income.

66. I have already explained that wife is a strong candidate for maintenance from a need perspective, but husband does not generate enough current income to meet his needs and pay a significant amount of maintenance. This means that Petitioner will walk away from this dissolution without any maintenance unless I exercise my discretion to make the parties share the economic hardship of their dissolution. ³ Both parties suggest that they require approximately $2,000 per month to meet their needs, but as explained above, $1,000 of wife’s budget represents “rent” that she does not pay when she resides with her daughter.

67. There was some suggestion that the China property was not available to single people and thus wife put her daughter’s name on the title so that wife could acquire the property. If that is the case, the approximate $100,000 in sale proceeds given to wife’s daughter to purchase, improve, and furnish the Herndon townhouse may amount to adequate consideration for wife’s rent free living arrangement. The record is not at all clear in this regard, but the paltry record presents more of problem for wife than husband because it was wife’s burden to prove her actual costs necessary to duplicate the marital standard of living and, perhaps more important, wife bore the practical burden of persuading me to exercise my discretion and apply the sharing of the hardship doctrine.

(Footnote 3: In Seidl v. Seidl, 1998 WL 8480, (Minn. App. 1998), the Court of Appeals explained that, “A maintenance award is not an abuse of the trial court’s discretion simply because the obligor lacks sufficient income to pay the award and his reasonable expenses. Cf. Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App. 1986).” Valenta v. Valenta, 1998 WL 346684, (Minn. App. 1998) added that, “this principle that changes in living standards resulting from dissolution should be equalized is supported by Supreme Court precedent station that a spouse requesting maintenance is entitled to support that is ‘not simply that which will supply her with the bare necessities of life, but such a sum as will keep her in the situation and condition in which [the other spouse’s] means entitle her to live.’ Arundel v. Arundel, 281 N.W.2d 663, 666-67 (Minn. 1979)” In Parker v. Parker, 1997 WL 658938, *4 (Minn. App. 1997), the trial court determined that the obligee suffered a $2,468 shortfall between income and reasonable and necessary expenses, while the obligor enjoyed a $408 surplus. In addition to awarding the surplus, the trial court divided the shortfall and made the parties share the pain on an equal basis, stating that “given the length of the marriage, it would be unfair to allow [appellant] to meet all of his own needs and let [respondent] experience such a significant shortfall.” The court of Appeals held that this was not an abuse of discretion. See also Ganyo v. Engen, 446 N.W.2d 683 (Minn, App. 1989), Shaw v. Supalo, 1996 WL 438807 (Minn. App. 1996), Martins v. Barnes, 2002 WL 31369512 (Minn. App. 2002), Austin v. Austin, 2004 WL 422566 (Minn. App. 2004) and Viola v. Viola, 2006 WL 44349 (Minn. App. 2006).)

68. If I require husband to pay $500 per month in maintenance, husband will not be able to meet his full needs out of current income. On the other hand, he has been diverting income generated during the marriage to pay the losses incurred to carry his family home in Pennsylvania. Husband always remains free to divest himself of the Milford property, cut his losses, and free up some real estate related, positive cash flow to lessen the burden of any maintenance obligation. (See Finding 23.) With $500 per month in maintenance wife will be alike amount short in meeting her non-rent needs. I fully understand that wife will be disappointed with this amount, but she needs to understand that had I not exercised my discretion to force the parties to share the economic hardship incident of their dissolution, she would have received far less in maintenance or perhaps none.

69. Respondent’s post trial submission asks that I limit the $500 maintenance award to just six months. Subdivision 3 of section 518.552 states that, “Where here is some uncertainty as to the necessity of a permanent [maintenance] award, the court shall order a permanent ward leaving its order open for future modification.” (emphasis added) No credible evidence was adduced at trial upon which I could find with certainty that Petitioner’s need for maintenance would disappear after six months. I will not limit the maintenance award to a temporary one as Respondent requests.

70. Respondent contends that parties’ debts must be split 50/50. In making this argument Respondent ignores a number of key points. First, he ignores the fact that the total amount of the debts at issue includes $84,017.50 in debt secured by his non-marital property at 1702 Glenwood. Because the 1702 Glenwood property is worth $160,000 and will be retained by Respondent, requiring him to service the debt on this property still represents a net gain (e.g. nearly $80,000 in positive net worth).

71. Second Respondent ignores the fact that $173,000 of the total debts at issue represents a debt consolidation loan that he chose to impose on the lone Glenwood property that is marital in nature - 1715 Glenwood. No accounting was introduced by Respondent to explain how much of this consolidation was marital in nature versus his non-marital debt that he chose to impose against a marital asset via the consolidation loan.

72. It is also important to remember that Respondent is also being awarded the 1715 Glenwood property which is valued at $110,000.

73. Respondent has at least $580,000 of unencumbered non-marital real estate and case law explains that the trial court may exercise its discretion to assign marital debts to the party with the greater ability to pay. I am awarding wife a small portion of the debts, but even though the portion is small, the amount of debts I am assigning to her exceeds the total liquid assets in her possession.

74. Respondent’s demand for a 50/50 split also ignores the fact that the parties’ debts would be much lower today had he not allowed his former spouse to live in rental property without paying rent, not given her significant gifts, not allowed her to use his credit cards, and not loaned her significant amounts of money for which no legitimate attempt has been made to collect on the loans.

75. The manner in which I exercised my discretion to apportion the debt as set forth in the order portion below comports with case law. See the unreported case of Quance v. Quance, 1999 WL 1216649 (Minn. App. 1999) which contains a good summary of the reported cases on the topic of debt distribution:

A district court may apportion to one party a substantial amount of marital debt or the debt in its entirety. See Lynch v. Lynch, 411 NW. 2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts); Jones v. Jones, 402 N.W. 2d 146, 149 (Minn. App. 1987) (district court’s apportionment of debt upheld where husband voluntarily incurred exorbitant debts and filed to show any reason why wife should be forced to pay half); Maher v. Maher, 393 N.W. 2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay the parties’ debts given his steady source of income); Justis, 384 N.W. 2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children). Additionally, where husband has incurred most of the marital debts without consulting his wife, this court has upheld apportionment of entire marital debt to the husband. Dahlberg, 358 N.W. 2d at 80.

76. Petitioner asserted a “dissipation” claim. “Dissipation” is a common law term of art that has been codified in Minnesota. See section 518.58, subd. 1a Today the question is whether the accused spouse “transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life.” The party advancing the dissipation claim bears the burden of proof. Minn. State 518.58 subd. 1a. It should be noted here how Responding admitted during the trial that he “dissipated” marital assets. Even though Respondent now argues that his actions did not constitute “dissipation” as defined by the statute, he chose the word “dissipation” to describe his improvident actions in letting Ms. Johnson walk away with so much money. For example, toward the end of the trial Respondent stated the following regarding the parties’ marital estate: “some of it was dissipated by me foolishly making loans [to Ms. Johnson].”

77. Petitioner’s dissipation claim was grand in scope and theory, but short on detail. There was no testimony that husband gambled away marital assets or spent marital money on drugs - the usual fare of dissipation claims. Instead, wife’s main theory segues from her attempt to interject fault into the equation: she contends that husband spent copious amounts of money on his mistress/ex-spouse (or mistresses). The record does not contain a credible summary of the amount of money allegedly spent in this manner. However, as I explained above, between 2006 and 2010, Respondent’s rental properties were never fully occupied by tenants paying full market rent year around.

78. The record credibly demonstrated that Respondent allowed his friend and ex-spouse, Ms. Johnson, to reside in rental property at below market rent (or for no rent at all.) As just one example, Respondent testified that he allowed Ms. Johnson to live in the Glenwood duplex starting in November 2010 and she stayed there until July 2011. Respondent testified that she paid only paid “a couple hundred dollars” in rent even though the unit rents for $916 per month. That represents at least $5,600 in rent for which Ms. Johnson paid “a couple hundred dollars.” This means that the marital estate was deprived of this rental income, thus depreciating the overall marital estate. The same holds true regarding cash given to Ms. Johnson from time to time, along with her permitted use of Respondent’s credit cards, regardless of whether such actions constituted gifts or loans for which there has been no legitimate attempt to collect. By taking such action, Respondent failed to preserve the marital estate in amount equal to all the unpaid or underpaid rent, plus the cash payments and credit card usage. Stated differently, but still using statutory language, by taking such action Respondent depreciated the marital estate. The unreported case of Luomo v. Luomo, C3-01-704 (September 18, 2001), 2001 WL 1085094 (Minn. App. 2001) explained this nuance when it held that without finding a “dissipation” in so many words, the trial court “may still consider the parties’ respective efforts in preserving marital property and there is no presumption that they both contributed equally to the preservation.”

79. Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation. See Hovelson v. Hovelson, C6-99-1893 (Finance & Commerce 6/5/00), 2000 WL 687782 (Minn. App. 2000) wherein the trial court made a “reasonable” decision, per the Court of Appeals, that Husband had dissipated assets during the dissolution because “Husband continually refused to turn over the [requested] documents, and only turned over partial, inaccurate and disorganized records when the court ordered compliance with the discovery when the court ordered compliance with the discovery requests. See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W..2d 434, 436-437 (Minn. 1990) (noting that failure to produce evidence permits inference that evidence, if produced, would have been unfavorable); Baker v. Citizens State Bank of St. Louis Park, 349 N.W. 2d 552, 558 (Minn. 1984) (the district court may draw inference from circumstantial evidence). The difficulty lies in translating the dissipation inference into a supportable number. Also, as explained above, wife failed to cooperate with discovery as well as by refusing to answer patently relevant inquiries.

80. Respondent argues in his post-trial motion for amended findings that Petitioner failed to carry her burden of proving a dissipation claim because she did not prove that the transfers to Ms. Johnson(or the rent relief) were done in anticipation of filing for divorce. (p.23, para. 22) Even if Respondent is correct in this regard, it does not detract from the fact that the marital estate was reduced in value equal to such transfers, credit card usage, and/or rent relief. It was consistent with my statutory discretion (and direction I might add) to consider such activity when fashioning a just and equitable award.

81. Respondent attempts to moderate the impact of his actions which decreased the marital estate by argument that he “gave his wife and daughter Violet more than $100,000 during the marriage over and above what was needed for household expense including money for Violet’s college tuition.” (p. 19, parag. 10) Respondent apparently does not understand, or refuses to accept, the reality that if this money came from employment during the marriage or from income earned on properties that he actively managed during the marriage, the money was marital property, not his property, and he was in no position to ‘give’ it to his wife: it was equally hers the moment he earned it. Money coming into Respondent’s pockets during the marriage is presumed to be marital. Minn. Stat. 518.003, subd. 3b. It was Respondent’s burden to overcome that presumption and he did not offer any evidence that the money came from pre-marital sources in existence before the parties married or from another post-wedding infusion of non-marital capital. Instead, he argues that, ‘It is also an error to assume that the money allegedly dissipated to Ms. Johnson came from marital funds.’ (p. 23, parag. 23) It was not my ‘assumption,’ it is a statutory presumption.

82. The record also reflects that Respondent made no seeming legitimate effort to recover the money loaned to Ms. Johnson and others. To put it bluntly - his actions did not pass the smell test. I understand philanthropy, charity, and a helping hand, but husband offered no credible evidence that explained such benevolence when, as a married man, he and his wife were experiencing an ever increasing debt load and he was liquidating assets left and right. The problem I am having here is that Petitioner did not offer credible evidence to support a specific number that I could insert in my marital asset division formula, Petitioner is also making inconsistent claims. On the one hand, she contents that Respondent dissipated marital assets by making these “loans”, but, on the other hand, wife treats these loans as legitimate assets in crafting her proposed property balance sheet. Respondent is also being inconsistent. He argues that there was no dissipation regarding the $86,000 that he identified as flowing to Ms. Johnson (p. 23, parag. 20), but ignores the fact that if these were legitimate loans and are awarded to Respondent in the Decree, he can use them to pay the debts assigned to him or fund the installment property award to Petitioner. His net worth necessarily will increase by an amount equal to the money loaned to Ms. Johnson and her associates.

83. Instead of adding back such expenditures/ loans to the marital balance sheet (for which I have not been provided a usable accounting), I am exercising my discretion to award wife a larger portion of the remaining marital property than I otherwise would have awarded, plus awarding her $50,000 to be paid by Respondent in installments. This number is justified from a- depreciation of the marital estate perspective independent of the dissipation claim. Petitioner’s dissipation claim, to the extent legitimate, only strengthens the manner in which I have exercised my discretion.

84. The $50,000 installment award to Petitioner is also justified as a section 518.58 subdivision 2 decision to award a percentage of Respondent’s non-marital property award to Petitioner, without considering the extent to which husband depreciated the marital estate and/or dissipated marital assets. Petitioner is entitled to such treatment because she needs it and because it is reasonable to find/conclude that the marital pie would have been significantly larger today sans the money frittered away by Respondent for non-marital purposes as discussed above. Awarding Petitioner this amount is also supportable based on the realization that husband chose to retain his inherited family home in Milford, Pennsylvania even though it did not produce positive cash flow, and spent other resources to keep the property afloat. The most-consistent source of such funds was the $9,000 plus yearly net income from the 9 unit apartment building. Although there is certainly a major non-marital component to this property, husband devoted considerable efforts to manage, maintain, and improve this property during the marriage such that a significant portion of the positive cash flow reasonably could be treated as a marital asset that was never used in a marital manner.

85. Petitioner seeks both need based and conduct based attorney’s fees. I will address her need based request first. It is clear that Petitioner, who is currently unemployed and dealing with recurrent cancer symptoms, does not have the ability to pay her attorney with her current income. She receives $280 to $300 per month in retirement from China. (Exhibit 118, #29)

86. It is equally clear that Respondent does not have the ability to contribute to Petitioner’s attorney’s fees using current income (especially considering the hardship sharing maintenance award). Although he enjoyed legal representation at the beginning of these proceedings, he was reduced to self-representation during the bulk of the litigation.

87. Both parties have little, if anything, in liquid assets. Their bank accounts are modest, Petitioner has a modest retirement account, and Respondent has sold most of his pre-marital securities. Knowing Respondent’s actual net worth is problematic. In a March 31, 201, application to proceed in forma pauperis he swore under oath that he had a net worth of $250,000 (Exhibit 28) while in an April 6, 2012, application to proceed in forma pauperis he swore under oath that he had a net worth of $255,000 (Exhibit 27). These numbers need to be compared, as a minimum, to the stipulation that his Pennsylvania property is unencumbered and is worth $280,000, not to mention his unencumbered Wisconsin real estate, the Wunderlix print, and the equity in some of his non-marital real estate on Glenwood. Despite the difficulty in fully understanding Respondent’s full net worth, there is no credible evidence that he enjoys copious liquid assets.

88. If Respondent were required to contribute to Petitioner’s attorney’s fees, he would need to sell non-marital assets to come up with the money. The bulk of those non-marital assets are real estate holdings in the depressed north side of Minneapolis. Wife has non-marital real estate in China, valued at approximately $200,000. (Ex. 118, #14) If non-marital property must be liquidated to pay counsel fees, wife is able to liquidate her own non-marital real estate to achieve that end.

89. I stepped in to preside over the parties’ dissolution trial because their assigned judicial officer was out on an extended medical leave. Because I had not presided over this case from the beginning, I did not have the opportunity to watch the case unfold and thus gradually develop an opinion regarding which party had been the most obstreperous and which party had been pursuing the most unreasonable agenda. However, I bring over eleven years of full-time Family Court experience to the table. Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by Petitioner herein were about as weak and unjustified as I have encountered during my many years as a Family Court judge. In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.

90. For example, most of the real estate held in Respondent’s name was acquired prior to the marriage, but Petitioner contended that she acquired a marital interest in husband’s small apartment building and 4-plex on Glenwood Avenue in North Minneapolis, plus his parents’ former home in Milford, Pennsylvania. She argued that she acquired a marital interest in these properties because she spent a considerable amount of time and effort improving and maintaining them. Credible evidence adduced during the trial belied this claim and demonstrated that her efforts were nominal at best and vastly inflated in a self-serving manner for litigation purposes.

91. Petitioner also contended that the enhanced value of husband’s pre-marital securities portfolio became marital property because he “actively managed” his securities accounts to the point that any increase in value attributable to such efforts became marital. There was no credible evidence that Respondent actively managed his portfolio. Instead, credible evidence demonstrated that husband bought or sold sock on average once per year, with many of those transactions involving the liquidation of pre-marital securities in order to pay mounting debts.

92. One could spend a fortune of time reviewing each and every pleading and correspondence item herein and probably find that Respondent was dilatory on numerous occasions. That same exercise would likely reveal that Petitioner took positions, both procedurally and substantially, that also increased the length and cost of this litigation in small increments. For example, with counsel’s complicity, Petitioner objected on relevancy grounds to a number of Respondent’s interrogatories, or objected that the question was duplicative, when neither was the case - not even close. (See Ex. 118 numbers 3 and 10 for examples.) Such actions by both sides likely contributed to the length of this litigation, but such delays pale in comparison to the main litigation drivers that I explained above: Petitioner’s unreasonable and unjustified positions on big-ticket items that made settlement impossible and a trial inevitable.”

93. Before discussing the property division, it is important to revisit the key assets. The parties agree that the 9 unit apartment complex at 1708 Glenwood Avenue, Minneapolis, is worth $280,000. (Ex 300) Respondent owned this before the parties’ marriage and it is presently unencumbered. As I explained above, there was no credible evidence that Petitioner made a significant enough contribution to the management, maintenance, and improvement of the apartment building to warrant transforming the non-marital character of the property, let alone manufacturing the $100,000 marital component asserted by wife. The marital component is nominal at best. The parties stipulated that Respondent would receive the apartment complex. (Ex. 300)

94. The 4-plex at 1702 Glenwood was also acquired before the marriage and the parties have agreed that it should be awarded to Respondent in its entirety. (Ex. 300) He will be required to assume the debt against the property. It has been appraised at $160,000. (Ex. 20) Respondent attempted to opine that the 4-plex is worth just $103,000, but his opinion is based in large part on extrapolations from hearsay. Relaying on Respondent’s opinion is further problematic due to the fact that he was not forthcoming with the information sought by Petitioner during discovery, which was necessary for proper preparation of cross-examination. I will accept the appraised value. Petitioner takes the position that the entire net value of the 4-plex is marital, again based on vastly inflated claims of her efforts to manage, maintain, and improve the property. Any marital component is nominal.

95. The duplex located at 1715 Glenwood (and the adjacent property at 1719 Glenwood Ave.) which was purchased after the marriage, has no net value, although it has a stipulated market value of $110,000 (Ex. 300) and is encumbered by a $173,000 lien. (Id.) This property presents a debt division issue - not an asset division issue. Petitioner argued that the debt against the property includes pre-marital debt that was folded into a new loan, but credible evidence adduced at trial persuaded me that the property was debt free on the date of marriage. See Antone v. Antone, 645 N.W. 2d 96, 103 (Minn. 2002), “We hold as a matter of law that a portion of market-related appreciation during the marriage [where marital funds were used to reduce the encumbrance] is marital property.” Petitioner argued that Antone was at play in this case, but there was no credible evidence that marital funds were used to retire debts. There was credible evidence that non-marital assets (such as life insurance received by Respondent) were used to retire debts.

96. Even though I find that Petitioner failed to prove the extent to which the $173,000 encumbrance included pre-marital debt that was folded into the most recent loan, it is clear that husband favored his non-marital properties to the disservice on the parties’ one marital parcel by not spreading the lien among the multiple parcels. As explained above, significant amounts of cash had to be dumped into the Milford, Pennsylvania property every year. Husband’s pre-marital 4-plex also lost money more often than it made money and the sustaining cash flow likely came from the proceeds of the current $173,000 encumbrance against the duplex or prior loans that were rolled into the $173,000 jumbo debt that the parties face today. As I set forth above, I am exercising my discretion to craft an unequal division of the marital property and debts. Since total marital debt significantly exceeds the marital assets, I am exercising my discretion to achieve equity on the debt side and require husband to pay this debt and hold wife harmless.

97. Consistent with her claims regarding the Glenwood rental properties, Petitioner claims that her contributions to the duplex produced a marital component, but this time wife suggests a much more modest marital component ($30,000 versus $170,000 + for the other two). Even at wife’s more modest level, her claimed marital component remains vastly inflated. Once again, I find that the record only supports a nominal marital component at best.

98. Petitioner contends that the parties own marital securities valued in excess of $70,000. The record does not support such a rosy picture. The parties acquired two different positions in BMC, but that company went belly up. (Ex. 316) Their marital shares in Northwest Airlines were sold in 2007 at a loss. Their Metris interest was sold, yielding a significant gain, but the proceeds were not traced by either party and their Xcel Energy stock was similarly sold, as was what little was left of their Enron stock. Respondent had a number of other equity positions that were acquired before the marriage, most of which have been sold. No sale document was introduced regarding the parties’ Qwest stock and I can only assume that they still hold the position (now Century Link), but its value at acquisition was just $1,200. Bottom line, the parties have little if any marital securities. I am not ignoring Baker v. Baker, 753 N.W. 2d 644 (Minn. 2000) or Prahl v. Prahl, 627 N.W. 2d 698 (Minn. app, 2001). There just isn’t much , if anything left in the portfolio, against which to apply such cases.

99. Petitioner contends that Respondent has a $100,000 + AXA Life Insurance account and that $15,000 in interest on that account is marital. The evidence does not support her claim. Credible evidence reflects that husband received the proceeds from a large life insurance policy insuring his now deceased brother and deposited the funds in an AXA Equitable account that held $114,663.01 as of February 26, 2010. (Exhibit 300) By May 11, 2011, 2011, it was down to $1,337.01. Husband credibly testified that the insurance proceeds were used to retired a number of pre-existing loans and cover other “shortages”. These “shortages” are consistent with the ongoing negative cash flow generated by the Milford, Pennsylvania, and 4-plex properties.

100. Other than a few minor property items discussed in the numbered Findings of Fact, I have completed my analysis of the “major” assets and have found little in the way of major marital assets, but quite a bit in major marital debt, most of which I am assigning to husband along with the real estate itself.

101. The only possible significant marital assets would be the loans to Joyce Johnson and associates. I gave Petitioner the opportunity to have those loans awarded to her and undertake collection efforts. She declined.

102. In order to avoid unfair hardship to one spouse, Minnesota Statutes section 518.58, subdivision 2, allows the trial court to award up to 50% of the non-marital property owned by the other spouse. Numerous factors must be considered before doing so. First, the trial court must consider the length of the marriage, plus any prior marriage by either party. Although the parties’ marriage was not an exceedingly long one, just about eleven years, it came at a time in their lives when the prospects of a subsequent marriage seem dim. As explained above, wife is in her 50’s, husband is over 70. Neither party testified regarding prior marriages, if any. Next, the trial court must consider the age, health, station, occupation, amount and sources of income, vocational skills, and employability of each party. Wife is in poor health and suffers from recurrent cancer among other health problems; is Chinese with little command of the English language; has a limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited. That reality, coupled with husband’s inability to pay her significant maintenance, portend a near destitute existence, unable to meet her basic needs on her own, with no legitimate prospects of acquiring additional capital assets.

103. Respondent is 71 and not a likely candidate for significant future employment income. The record reflects that the parties lived a frugal existence, with Respondent not generating considerable income at his pre-retirement, accounting related job. He appeared in good health for his age and no evidence was introduced to the contrary. The Glenwood Avenue properties discussed above were acquired by husband based on his perceived need for retirement funds. The duplex has no net value, but the 9 unit apartment complex has significant value, as does the 4-plex. The family home and property that husband inherited in Pennsylvania is worth $280,000 per the parties’ stipulation in Exhibit 300 (and Respondent has additional adjacent unimproved land that is not included in the $280,000 total.) He also owns non-marital property in Port Wing, Wisconsin. The only value figure for the Wisconsin property is the $20,000 amount set forth in Exhibit 302. The value of Respondent’s over-all estate is already being reduced by $63,000 because I am exercising my discretion to assign to him a larger share of the marital debt, including the $173,000 mortgage against the Glenwood Avenue duplex valued at $110,000.

104. The record does not contain strong support for a finding that Respondent has substantial, liquid non-marital assets. Exhibit 302 suggests that his stocks were worth $77,717.53 in 2011, but neither party introduced evidence of their value at the time of trial. Any decision to award Petitioner a percentage of his non-marital estate necessarily must contemplate that he will be unable to pay such funds immediately when judgment is entered unless the stock total on Exhibit 302 is representative of the portfolio. In order to satisfy such an award, Respondent likely will need to sell a portion of his non-marital real estate or borrow money secured by that real estate. The Port Wing, Wisconsin property ($20,000), the Pennsylvania property ($280,000), and the 1708 Glenwood Avenue ($280,000), all unencumbered, have $580,000 in combined value. 1702 Glenwood Avenue has a net value of $75,982.50 ($160,000 - $84,017.50 = $75,982.50). Wife’s China real estate is worth approximately $200,000. The difference between the two is approximately $455,983. I would not find it fair or reasonable, nor would I exercise my discretion, to award wife anywhere close to 50% of this difference. Husband is 71, with little or no chance to build up new capital, and I am already causing him to share the hardship incident to the dissolution by ordering him to pay more maintenance than he can afford and still meet his own needs, plus a disproportionately large percentage of the marital debt. Other than the Pennsylvania and Wisconsin properties, his estate represents a lifetime of effort and it would not be fair or reasonable to divest husband of close to 50% of such efforts based on a relatively short marriage to wife.

105. Given the length of the marriage, the parties’ financial circumstances as set forth above, the unequal debt division, the hardship-sharing maintenance award, and the merits of wife’s claim that husband either dissipated marital assets or took actions that depreciated the marital estate, I am exercising my discretion to require husband to pay wife $50,000 in installments. (Petitioner elected not to be awarded the money owed by Ms. Johnson, Joe Nelson, and Elizabeth Mora.)

106. Since Petitioner and her daughter were on the title to the Chinese property already sold by wife, and Respondent claims no marital interests in the proceeds, he should be held harmless from any tax liability associated with the sale.

 

CONCLUSIONS OF LAW

I. DISSOLUTION OF MARRIAGE. The marriage existing between the parties is hereby dissolved.

II. SPOUSAL MAINTENANCE

Commencing August 1, 2012, as and for permanent spousal maintenance, Respondent shall pay to Petitioner the sum of $500.00 per month in two equal installments on the first and fifteen days of each month, until the earlier of the following events:

(a) Death of Petitioner

(b) Death of Respondent

(c) Remarriage of Petitioner

(d) Further order of the Court

It is intended that this maintenance payable to Petitioner shall be included in Petitioner’s
gross income, pursuant to Section 71 of the Internal Revenue Code, and shall be
deductible by Respondent, pursuant to Section 215 of the Internal Revenue Code. The
Court retains jurisdiction to enforce Respondent’s obligation to pay maintenance to
Petitioner.

III. MEDICAL, HOSPITALIZATION AND DENTAL INSURANCE. Neither party is obligated to provide medical, hospital or dental insurance for the other.

IV. MARITAL AND NONMARITAL PROPERTY AWARDED TO PETITIONER:

“1. The Beijing, China, condominium at Hualong Residence Community, Tongzhou
District, Building 48, Apt. 552.

2. All bank accounts, investment accounts, and retirement accounts in her name, including but not limited to her Wells Fargo and Chinese Bank Accounts;

3. The parties joint US Bank accounts ending in numbers 3536 and 2032 at the
values set forth above in Finding 16.

4. All personal items in her possession;

5. Her 401k;

6. The parties Qwest/Century Link stock;

7. $50,000 which shall be paid by Respondent in successive equal monthly installments
of $10,000 each (with no interest thereon) commencing October 1, 2012.

V. MARITAL AND NONMARITAL PROPERTY AWARDED TO RESPONDENT:

1. His non-marital Wunderlix Celluloid Prints;

2. The non-marital Port Wing, WI, improvements and land legally described as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

3. The Mercury Tracer;

4. All bank accounts, investment accounts, and retirement accounts in his name,
including but not limited to his Wells Fargo checking, US Bank savings account ending in 7969, US Bank checking account ending in 5106, Wells Fargo stock referenced by account ending in 6846, ACA Equitable account ending in 9019, his US Bank checking account ending in number 3556, his US Bank account ending in number 2032, and any other accounts in his name only.

5. His non-marital four-plex at 1702 Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota;

6. His non-marital nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

7. The improvements and land located at 100 Sawmill Avenue, Milford,
Pennsylvania.

8. The marital property at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

9. 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally
described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying
North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin
County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that
part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision
No. 26, Hennepin County, Minnesota.

10. The following stocks/ securities: Gannett, Wells Fargo/Wachovia, Arbitron, US
Bank, Target, and Germany Fund/ Euro Equity Fund;

The following life insurance policy: AXA Life insurance account.

VI. DEBTS ASSIGNED TO RESPONDENT

Respondent shall pay and hold Petitioner harmless from: all encumbrances against
the real estate awarded to him above; the Advanta debt; the debt on the Menard’s credit
card account # ending in in 5093; the Citybank business card, account #
ending in 5466; the debt to First Bank of Omaha; $3,000 of Petitioner’s existing medical bills, and the unsecured line of credit at US Bank with a balance of $39,628.01.

VII. DEBTS ASSIGNED TO PETITIONER

Petitioner shall pay and hold Respondent harmless from all of her medical bills other than $3,000 of the existing medical bills, Citi credit line ending in 2637, the unsecured line of credit at US Bank with a balance of $5,976.67, and any tax liability incident to the sale of the condominium in China titled in her name and the name of her daughter.

VIII. ATTORNEYS’ FEES Each party is responsible for their own individual attorneys’ and experts fees and costs incurred in this proceeding.

IX. SERVICE OF A COPY OF JUDGMENT AND DECREE. Service of a copy of this Judgment and Decree may be made on the attorney for the other party, by United States mail and the same shall be in lieu of personal service upon a party.

X. DISCHARGE OF COUNSEL. Sixty-one (61) days after filing of this Judgment and Decree, all attorneys of record will be automatically discharged without further notice.

XI. DOCUMENTS OF CONVEYANCE. Each of the parties shall, upon demand, now or in the future, execute, acknowledge and/or deliver any and all documents necessary to carry out the terms and conditions of this agreement and Judgement and Decree. If a party is unable, unavailable or refuses to do so, a certified copy of this Judgment and Decree of dissolution may be recorded and/or utilized with the same force and effect as if a deed, conveyance, transfer, assignment or other document had been personally executed, acknowledged and delivered to that party. If a party refuses to cooperate, the other party shall be entitled to collect all reasonable attorney’s fees and other costs in connection with enforcement of this agreement and Judgment and Decree due to the failure of a party.

XII. APPENDIX A The attached Appendix A is incorporated and made a part of this Judgment and Decree.

XIII. ENTRY OF JUDGMENT AND DECREE. Entry of Judgment shall not be stayed pursuant to Rule 125 of General Rules of Practice for District Courts, but shall be entered immediately by the court administrator.

ORDER FOR JUDGMENT

NOTWITHSTANDING GEN. R. PRAC. 125,
LET JUDGMENT BE ENTERED IMMEDIATELY

BY THE COURT:

Dated: ______, 2012 Stephen W. Jensen 12/28/12 _____________________________
Stephen W. Jensen
Judge of District Court

I hereby certify that the above Conclusions of Law constitute the Judgment and Decree of the Court.

IT IS HEREBY ADJUDGED THAT JUDGMENT
IS ENTERED AS STATED ABOVE.
ATTEST: Family Court Administrator

Dated: ______________, 2012 By: __________________________
Deputy

 

Mack, File No. 27 FA 11-2008

MEMORANDUM

Procedural background

This case was assigned to Referee Alice Raleigh, but she was out on an extended medical leave when the case came on for trial and I agreed to step in and handle the trial. (Footnote 4 Referee Raleigh recently announced that she will not be returning to the court and is resigning her position.) Referee Raleigh’s October 18, 2011, Trial Order set the case for a two-day trial. The Presiding Judge of Family Court, Ruth Washington, met with the parties and attempted to settle the case. She helped the parties negotiate a partial settlement (Exhibit 300) and then reminded both parties that the trial would be limited to two days. This information was imparted to me before I agreed to pitch in and handle the trial in Referee Raleigh’s absence. As Chief Judge, I needed to know how much trial time would be expected of me in order to determine whether I could accept the assignment and still meet my obligations as Chief Judge.

My file review revealed that Referee Raleigh had imposed certain obligations on the parties that were designed to expedite the trial. Her decision to limit the trial to two days appears to have been based on the assumption that the parties would comply with those obligations. Neither did. Husband failed to pre-mark his exhibits starting with the number 101. Instead, he pre-marked his exhibits with the number 1 - using the numbers assigned to wife. He also failed to provide the court with an exhibit binder, failed to provide his proposed exhibits to wife in a timely manner, and failed to follow the required protocol for garnering exhibit admissibility stipulations. These shortcomings meant that a significant amount of trial time had to be used to re-mark all of his proposed exhibits, followed by arguments regarding admissibility Husband’s failure to provide the court with an exhibit index also meant that a significant amount of time was wasted frequently shuffling through loose piles of exhibits whenever particular exhibits became germane to the inquiry. I could have exercised my discretion to follow Referee Raleigh’s order to the letter and excluded husband’s exhibits due to his failure to comply with the trial order, but I declined to do so. Instead, I afforded self-represented husband a considerable amount of accommodation and helped him with his exhibit introductions and lines of inquiry when he struggled. (Footnote 5: [A] district court ‘has a judicial duty to ensure that a case is presented based on all applicable law’ and must be ‘especially aware’ of this duty when, as here, a party is pro se. Christenson v. Argonaut Ins. Cos., 380 N.W. 2d. 515, 519 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986)” Mignone v. Bouta, 2005 WL 3371082 (Minn. App. 2005). “A trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodations so long as there is no prejudice to the adverse party.” Kasson State Bank v. Haugen, 410 N.W. 2d 392, 395 (Minn. App. 1987).)

Wife also also failed to exchange her exhibits and file them with the court in a timely fashion. I accommodated her as well by not excluding her untimely exhibits. I also helped wife with the presentation a few times when neither wife nor the Mandarin interpreter understood her attorney’s questions. I might add that even in English I had trouble understanding some of counsel’s questions. In order to move the trial along I intervened on occasion and asked a question or two in a manner intended to aid the interpreter’s understanding.

In addition to the foregoing efforts, the record will reflect that on numerous occasions I advised husband that his cross examination was taking way too long and yielding little of substance. I urged him to reserve more of his allotted time for his own testimony. He ignored my attempts to help.

Wife also contributed to the difficult trial. On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman. This improper conduct started with her discovery responses. For example, in response to ‘request” number 8 (e.g. interrogatory #8), wife stated, “He (husband) received two large life insurance policies in 2010, but gave it all to Joyce Johnson, Joe Nelson, and Elizabeth Mora after Chester’s (husband’s) numerous affairs.” (Ex. 118) Wife’s response to number 13 suggested that husband “spent all of his money on mistress Joyce Johnson.” (Id.) Instead of reigning in her client, wife’s counsel signed the discovery responses that improperly interjected fault. When wife attempted to replicate her discovery responses and interject fault at trial, I made it clear that I would not entertain such testimony. Wife was not deterred and adduced Respondent’s alleged extra-marital affairs on more than one occasion. I mention this not just because the topic was improper, but because husband was unrepresented, obviously upset with the topic, became distracted, and it veered him off task. As far as I could glean, counsel did nothing to restrain her client from proceeding ahead in this manner. Wife also repeatedly failed to confine her answers to the matters raised by the questions. Time and time again she went far beyond the question, vented her anger at husband, and otherwise provided non-responsible information that riled husband and shifted his focus off task.

I made all these observations simply to support my view that the two days set aside for trial by Referee Raleigh, and reaffirmed by Presiding Judge Washington, were not overly optimistic. The case easily could have been tried in less than two days had the parties complied with the trial order and behaved in manners other than I described above.

SWJ

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

(J) RESPONDENT’S APPEAL TO MINNESOTA COURT OF APPEALS AND COURT DECISION

(38) Notice of Appeal to the Minnesota Court of Appeals (February 20, 2013) See divorcebook.html, chapter 52.

 

FORM 103A NOTICE OF APPEAL

STATE OF MINNESOTA FAMILY COURT DIVISION DISTRICT COURT
COUNTY OF HENNEPIN HENNEPIN COUNTY COURT
FOURTH JUDICIAL DISTRICT

CASE TITLE NOTICE OF APPEAL TO MINNESOTA
COURT OF APPEALS

Rose Fen Mack
Plaintiff

vs. TRIAL COURT CASE NUMBER 27-FA-11-XXXX

Chester Arthur Mack
Respondent DATE OF ORDER: December 28, 2012

To: Clerk of the Appellate Courts
Minnesota Judicial Center
Saint Paul, MN 55155

Please take notice that the above-named respondent appeals to the Court of Appeals of the State of Minnesota from an order of the trial court in Hennepin County Family Court entered on December 28, 2012 in response to Respondent’s post-trial motion for Amended Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree.

DATED: February 20, 2013

Chester Arthur Mack pro se (I am not an attorney.)
1702 Glenwood Avenue
Minneapolis, MN 55405
374-XXXX

Plaintiff’s attorney:
Lynda Wong, Attorney at Law
XXXX Snelling Ave. N., Suite C
St. Paul, MN 55113
tel: (651) 982-XXXX
Registration License #XXXXXXX

_____________________________________
SIGNATURE OF APPELLANT

Dated: February 20, 2013

The Statement of the Case read:

FORM 133. STATEMENT OF THE CASE

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CASE TITLE:

Chester Arthur Mack
Appellant, STATEMENT OF THE CASE OF APPELLANT
vs. TRIAL COURT CASE NUMBER: 27-FA-11-XXXX

Rose Fen Mack
Respondent. APPELLATE COURT CASE NUMBER:

 

Court or agency of case origination and name of presiding judge or hearing officer.

Fourth judicial district, Hennepin County Family Court, Hon. Stephen F. Jensen, chief judge

2. Jurisdictional statement

(A) Appeal from district court.

Statute, rule or other authority authorizing appeal:

Per Minnesota Rules of Civil Appellate Procedure:

Rule 103.03 Appealable Judgments and Orders

An appeal may be taken to the Court of Appeals:
(a) from a final judgment, or from a partial judgment entered pursuant to Minn. R. Civ. P. 54.02

Date of entry of judgment or date of service of notice of filing of order from which appeal is taken: December 28, 2012

Authority fixing time limit for filing notice of appeal (specify applicable rule or statute):

Per Minnesota Rules of Civil Appellate Procedure:

104.01 Time for Filing and Service

Subdivision 1. Time for Appeal. Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing.

Regarding Subdivision 1: The time limit for filing notice of appeal is 60 days.

Date of filing any motion that tolls appeal time:

A post-trial motion for amended findings of fact/conclusions of law or, alternatively, a new trial was filed on August 20, 2012.

Date of filing of order deciding tolling motion and date of service of notice of filing:

Trial-court order pertaining to Appellant’s post-trial motion was entered on December 28, 2012.

Notice of Appeal was filed on February 20, 2013.

(B) Certiorari appeal.

Statute, rule or other authority authorizing certiorari appeal:

This case is not being sent to the court of appeals for certiorari review.

Authority fixing time limit for obtaining certiorari review (cite statutory section and date of event triggering appeal time, e.g., mailing of decision, receipt of decision, or receipt of other notice):

This situation does not apply.

(C) Other appellate proceedings.

Statute, rule or other authority authorizing appellate proceeding:

This situation does not apply.

Authority fixing time limit for appellate review (cite statutory section and date of event triggering appeal time, e.g., mailing of decision, receipt of decision, or receipt of other notice):

This situation does not apply.

(D) Finality of order or judgment.

Does the judgment or order to be reviewed dispose of all claims by and against all parties, including attorney fees? Yes ( x) No ( )

If no:

Did the district court order entry of a final partial judgment for immediate appeal pursuant to MINN. R. CIV. APP. P. 104.01? Yes ( ) No ( ) or

If Yes, provide date of order:

If no, is the order or judgment appealed from reviewable under any exception to the finality rule? Yes ( ) No ( )

If Yes, cite rule, statute, or other authority authorizing appeal:

(E) Criminal only:

Has a sentence been imposed or imposition of sentence stayed? Yes ( ) No ( )

If no, cite statute or rule authorizing interlocutory appeal:

State type of litigation and designate any statutes at issue.

Case type: Dissolution of marriage without children

Statutes at issue: Minnesota statutes § 518.58 Subd. 1, 1a; 518.58 Subd. 2; 518.003, subd. 3 (a), (b); 518.552, subd, 1, subd. 2

Brief description of claims, defenses, issues litigated and result below. For criminal cases, specify whether conviction was for a misdemeanor, gross misdemeanor, or felony offense.

a. Court ruling: The trial court ordered the Appellant to pay marital debts totaling $319,736 and the Respondent to pay marital debts of $5,977. It awarded Appellant marital assets of $110,500 and the Respondent marital assets of $5,000.

Broad Claim: The trial court did not divide marital property, including debt, in a just and equitable manner as required by Minnesota statute § 518.58 Subd. 1.

i. Claim: The unbalanced distribution of the marital debt is patently inequitable.

ii. Claim: The court failed to state a total of marital property to be divided.

iii. Claim: The marital or non-marital character of a debt does not change based upon the type of asset used to secure it.

iv. Claim: The practical difficulties in apportioning a part of the marital debt to the Respondent do not justify an inequitable division.

v. Claim: Since the parties did not own Qwest stock at the time of the trial, it should not have been awarded to the Respondent.

The trial court’s reasoning: In distributing most of the marital debts to the Appellant, the judge first combined the $84,017 marital debt with the $160,000 non-marital asset at 1702 Glenwood Avenue, Minneapolis, and the $173,000 marital debt with the $110,000 marital assets at 1715 Glenwood Avenue, Minneapolis, assigned both to the Appellant, and removed these items from the further distribution of marital property (mostly debts). No explicit justification was given for linking assets with debts in these two instances. As for the rest of the debt, the judge held that case law gave him discretion to distribute the property to the party with the greater ability to pay. His decision also reflected his attempt “to craft an overall fair award”. The judge took into consideration that the Appellant dissipated marital assets in unrecovered loans or gifts to Joyce Johnson, that he failed to evict her as a tenant despite several months of unpaid rent, and that he has chosen to keep a house in Milford, Pennsylvania, for which the received rent does not cover expenses. As a practical matter, assignment of significant amounts of the marital debt to the Respondent would be impractical since the the Appellant’s name is on all of these debts.

b. Court ruling: The trial court ordered the Appellant to pay $500 per month in permanent spousal maintenance.

Broad Claim: The spousal-maintenance award is unjustified because the findings are not adequately supported by evidence in the record and the calculation of need ignores pertinent evidence given at trial.

Claim: The calculation by which the trial court “equalized the hardship” between the parties was based on faulty or incomplete information.

Claim: The findings used to justify the spousal-maintenance award are not adequately supported by evidence contained in the record.

Claim: The permanent spousal-maintenance award of $500 per month violates the statutory guideline that the other party should have the ability to pay the award out of current income.

Claim: Continued ownership of valuable real estate in China belies the claim that the Respondent “lacks sufficient property ... to provide for (her) reasonable needs” as required under Minnesota Statute § 518.552, Subd. 1(a).

The trial court’s reasoning: In ordering Appellant to pay Respondent $500 per month in permanent spousal maintenance, the judge noted first that the Respondent sought spousal maintenance while the Appellant did not. The judge found that that the Respondent was “a strong candidate for permanent spousal maintenance” based on the facts that (a) she “has not mastered the English language, even to a moderate degree”, (b) she has “serious health issues”, (c) she has limited work history, and (d) she is unemployed and has few liquid assets. The assumption was that the Respondent will be permanently unable to work. The judge’s award was based on the “sharing-the-hardship” concept by which both parties would each be left $500 per month short in the financial needs relative to income if the Appellant paid permanent spousal maintenance of $500 per month. Statute requires that maintenance be permanently awarded if there is any doubt on this question.

c. Court ruling: The trial court ordered the Appellant to pay $50,000 from his non-marital assets in five equal installments of $10,000 beginning October 1, 2012.

Broad Claim: The trial court has invaded Appellant’s non-marital property in violation of statute.

i. Claim: The trial court failed to present a finding of unfair hardship as required by Minnesota Statute § 518.58 Subd. 2.

ii. Claim: The trial court improperly interprets “ability to pay” in terms of possessing non-marital property that might be sold rather than having prospects for gaining income.

iii. Claim: The short time allowed for mortgaging or selling real estate to raise cash for an award of non-marital property on short notice creates a hardship for the Appellant.

The trial court’s reasoning: In ordering Appellant to pay $50,000 from his nonmarital property, the judge found that the Appellant’s dissipation of marital assets and retention of the nonmarital house in Milford, Pennsylvania, justified the award. Repeating arguments used to award spousal maintenance, the judge concluded that the Respondent would experience “a near destitute existence” if she did not receive this award invading non-marital property, based on her limited English-language ability, health problems, and current unemployment. His specific reasons for invading the Appellant’s non-marital property were given in ¶ 105: “the parties financial circumstances as set forth above, the unequal debt division, the hardship-sharing award, and the merits of the wife’s claim that husband either dissipated marital assets or took actions that depreciated the marital estate.”

d. Court ruling: The trial court found that the Appellant had dissipated marital assets.

Broad Claim: There was no dissipation of marital assets.

i. Claim: The allegedly “dissipated” assets were not distributed in anticipation of divorce.

ii. Claim: The judge ignored the fact that theft was behind some of the “dissipation” and the Appellant’s intent was actually to conserve assets.

iii. Claim: The “dissipation” may have been funded from non-marital assets.

iv. Claim: Not all property received during a marriage is marital; there are exceptions.

v. Claim: There is no evidence that the Appellant was uncooperative during discovery.

vi. Claim: If marital assets were dissipated, the trial court ignores the statutory remedy for restoring equity.

The trial court’s reasoning: In finding claims that the Appellant had dissipated marital assets to be meritorious, the judge stated that the Appellant admitted “dissipating” assets, that he did not cooperate fully during discovery, that he admitted in an email to the other party’s attorney that around $89,000 had been charged to his credit-card or checking accounts to Joyce Johnson’s benefit, that the record does not reflect efforts to have the loans be repaid, that he did not promptly evict Ms. Johnson for not paying rent, that the argument that the “dissipated” funds might have come from non-marital assets ought to be rejected for statutory reasons, and the transactions involving Joyce Johnson did not pass the “smell test” because of her previous relationship with Appellant.

5. List specific issues proposed to be raised on appeal.

I. Did the trial-court judge have discretion to assign marital debts of $319,736 and marital assets of $110,500 to the Appellant, and marital debts of $5,977 and marital assets of $5,000 to the Appellant as “a just and equitable division of the marital property of the parties” under Minnesota Statute § 518.58, Subd. 1?

II. Did the trial court fail to make adequate findings of fact to support its division of marital property under Minnesota Statute § 518.58, Subd. 1 in failing to declare a total of property to be divided?

III. Does marital debt lose its marital character when it is secured by a mortgage on non-marital property, justifying its removal from the pool of marital property to be divided under Minnesota Statute § 518.58, Subd. 1?

IV. Was the fact that all the marital debt was in the Appellant’s name a valid reason to assign all or most of it to him under the provisions of Minnesota Statute § 518.58, Subd. 1?

V. Did the judge abuse his discretion in awarding Respondent shares of stock in Qwest which the parties no longer owned at the time of trial?

VI. Has the trial-court judge fairly calculated the relative income shortfall of the two parties from evidence presented at trial?

VII. Was there sufficient evidence in the trial record to justify the judge’s findings of fact that the Respondent did not speak English ”even to a moderate degree” and that her past health problems precluded future employment?

VIII. Does case law allowing a trial court to award spousal maintenance beyond the obligor’s ability to pay overcome the statutory requirement under Minnesota Statute § 518.552, Subd. 2(g) that the award should take into consideration “the ability of the spouse from whom maintenance is sought to meet needs”?

IX. Does the Respondent’s continued ownership of unencumbered non-marital property in China worth $200,000 overcome the trial-court judge’s award of permanent spousal maintenance to her of $500 per month on the grounds that she lacked “sufficient property .. to provide for (her) reasonable needs” as required under Minnesota Statute § 518.552, Subd. 1(a)?

X. Did the trial court base its award of $50,000 of the Appellant’s non-marital property on findings of “unfair hardship” as required in Minnesota Statute § 518.58, Subd. 2?

XI. If case law case law allows a trial court to exercise its discretion in assigning debts to the party with greater ability to pay or invading that party’s non-marital assets, can “ability to pay” be measured by the amount of non-marital assets that might be sold or is this qualification limited to income from future earnings or investment?

XII. Did the trial-court judge abuse his discretion in making a cash award of Appellant’s non-marital property to Respondent that would require him to sell or mortgage real estate within two months?

XIII. Did the the trial-court judge abuse his discretion in ignoring the statutory requirement that “dissipated” property be distributed in contemplation of or during divorce proceedings?

XIV. Did evidence presented at trial show that the $89,000 claimed to have been dissipated by Appellant was intentionally transferred to a third party in dereliction of a spouse’s duty to conserve marital assets?

XV. Did the money which Joyce Johnson or her relatives received represent dissipated assets if some or all of this money came from non-marital sources?

XVI. Was the trial-court judge correct in asserting that all “money coming into Respondent’s pockets during the marriage is presumed to be marital” under Minn. Stat. 518.003, subd. 3b?

XVII. Did evidence in the record support the judge’s claim that marital property was probably dissipated because Appellant showed “less than complete cooperation regarding discovery”?

XVIII. If there was dissipation of marital property, did the trial court abuse its discretion in failing to pursue the statutory remedy in Minnesota Statute § 518.58, Subd. 1(a)?

Related appeals.

List all prior or pending appeals arising from the same action as this appeal. If none, so state. none

List any known pending appeals in separate actions raising similar issues to this appeal. If none are known, so state. none

7. Contents of record.

Is a transcript necessary to review the issues on appeal? Yes (x ) No ( )

If Yes, full ( x ) or partial ( ) transcript?

Has the transcript already been delivered to the parties and filed with the trial court administrator? Yes ( ) No (x )

If not, has it been ordered from the court reporter? Yes ( ) No ( x)

If a transcript is unavailable, is a statement of the proceedings under Rule 110.03 necessary? Yes ( x) No ( )

In lieu of the record as defined in Rule 110.01, have the parties agreed to prepare a statement of the record pursuant to Rule 110.04? Yes ( ) No (x )

8. Is oral argument requested? Yes ( ) No (x )

If so, is argument requested at a location other than that provided in Rule 134.09, subd. 2? Yes ( ) No ( )

If Yes, state where argument is requested:

9. Identify the type of brief to be filed.

Formal brief under Rule 128.02. (x )

Informal brief under Rule 128.01, subd. 1 (must be accompanied by motion to accept unless submitted by claimant for reemployment benefits). ( )

Trial memoranda, supplemented by a short letter argument, under Rule 128.01, subd. 2. ( )

10. Names, addresses, zip codes and telephone numbers of attorney for appellant and respondent.

NAME, ADDRESS, ZIP CODE, TELEPHONE NUMBER, AND ATTORNEY REGISTRATION LICENSE NUMBER OF ATTORNEY FOR RESPONDENT

Lynda Wong, Attorney at Law
XXXX Snelling Ave. N., Suite C
Roseville, MN 55113
tel: (651) 982-XXXX
Registration License #XXXXXXX


________________________________________________
SIGNATURE

OR, IF NOT REPRESENTED BY COUNSEL:

NAME, ADDRESS, ZIP CODE AND TELEPHONE NUMBER OF APPELLANT

Chester Arthur Mack
1702 Glenwood Avenue
Minneapolis, MN 55405
tel: (612) 374-XXXX


________________________________________________
SIGNATURE OF APPELLANT

Dated:

(The Statement of Case is not a jurisdictional document, but it is important to the proper and efficient processing of the appeal by the appellate courts. The "jurisdictional statement" section is intended to provide sufficient information for the appellate court to easily determine whether the order or judgment is appealable and if the appeal is timely. The nature of the proceedings below and the notice of appeal determine the jurisdiction of the appellate court. The sections requesting information about the issues litigated in the lower court or tribunal, and the issues proposed to be raised on appeal are for the court's information, and do not expand or limit the issues that might be addressed on appeal. Likewise, the section asking counsel to identify and prior or pending appeals from the same case, and any separate appeals that raise similar issues is intended to provide more information about the procedural history of the case and to ensure that the court has early notice of other pending related matters in case consolidation is appropriate.)

 

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(39) Appellate Court Mediation order (February 22, 2013) See divorcebook.html, chapter 53.

The above case, having been evaluated by the family law appellate mediation office and meeting the requirements for the mandatory mediation program,

IT IS HEREBY ORDERED

That this case is referred to the Family Law Appellate Mediation Program.

On or before March 8, 2013, the parties shall submit (a) selection of mediator form, and (b) confidential information form to the Family Law Appellate Mediation Office, #255G, 25 Rev. Martin Luther King Jr. Blvd., St. Paul, MN 55155. All information obtained for and through the mediation process, will remain confidential and will not become part of the official court records.

The Family Law Appellate Mediation Office will issue a letter appointing the mediator. Attorneys and pro se parties will be contacted by the Family Law Appellate Mediation Office to schedule a premediation telephone call. Parties shall begin mediation as soon as possible and complete mediation within 70 days after the date of the premediation phone call.

Parties shall submit mediation settlements if the mediator so requests.

Parties with full settlement authority and their counsel of record are required to attend mediation sessions. If a party refuses to attend a mediation session or sessions, unreasonably delays the scheduling of mediation, or otherwise unreasonably impedes the conduct of the family law appellate mediation program, and the case is returned to the appellate docket as a result of those actions, the court may impose sanctions. Scheduling is not considered part of the mediation process and is not subject to the confidentiality provision.

Each party shall appear at the mediation session or sessions. A party is deemed to appear at a mediation session if the following persons are physically present.

the party or its representative having full authority to settle without further consultation: and

the party’s counsel of record, if any.

All appellate mediation sessions shall be confidential as provided in Minn. R. Gen. Pract. 114. Actions listed in #5 above are not confidential and shall be reported to the court for possible sanctions. They shall not, however, become part of the court file.

The appellate process, including the deadlines for preparing and transmitting the record, requesting transcripts, and filing briefs in this case, is stayed pending further order of this court. The deadline for filing any notice of related appeal or a separate appeal is not stayed.

Any deficiencies in the filing of the appeal must be remedied.

The mediation shall be completed within 70 days after the date of premediation phone call.

Dated: February 22, 2013
BY THE COURT

_________/s/_________
Matthew E. Johnson
Chief Judge

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(40) Petitioner’s New Attorney’s Clarification Statement (March 6, 2013) See divorcebook.html, chapter 54.

“Pursuant to Minn. R. Civ. App. P. 133.03, Respondent submits the following for the purpose of clarifying or supplementing the Appellant’s Statement of the Case.

Section 3. State type of litigation and designate any statutes at issue.

Statutes at issue: Minn. Stat. Section 581.85 (Division of Marital Property); Minn. Stat. Section 518.552 (Maintenance); Minn. Stat. Section 518.003 (Definitions).

Section 4. Brief description of claims, defenses, issues litigated and result below.

Respondent makes the following clarifications or supplementations to Appellant’s statements under the headings “(c)ourt ruling” and ‘(t)he trial court’s reasoning”:

With regard to the division of marital debt, the trial court ordered Appellant to pay a larger portion of the marital debt. At the same time, the Court also awarded all real properties, marital and non-marital to the appellant, except for Respondent’s non-marital real property located in China.

The bulk of the debts assigned to Appellant stem from encumbrances on real properties. Specifically, an encumbrance in the amount of $84,017.50 secured by his non-marital property at 1702 Glenwood Ave. Minneapolis (worth $160,000) with a net value of $75,982.50; and an encumbrance of $173,000 which is a debt consolidation loan that Appellant imposed on the marital property at 1715 Glenwood Ave. Minneapolis (worth $110,000) with a net value of - $63,000. The court found that Appellant did not introduce any evidence regarding how much of this consolidated loan is marital and how much is non-marital.

The Appellant was awarded at least $580,000 of unencumbered non-marital real properties. The Court also found that the Appellant favored his non-marital properties to the disservice of the marital property at 1715 Glenwood Ave. Minneapolis - specifically, significant resources were diverted by Appellant to maintain the non-marital property at Milford Pennsylvania each Year; that Appellant’s non-marital property at 1702 Glenwood Ave. Minneapolis had lost money more than it made money and that Appellant likely used the proceeds of the consolidated loan of $173,000 to maintain the non-marital property at 1702 Glenwood Ave. Minneapolis.

Additionally, the court noted that Appellant’s debt would be much lower if he had not allowed his former spouse Joyce Johnson to live in rental property without paying rent, given her use of his credit cards and given her significant amounts of money with no legitimate attempt to collect, totaling approximately $86,000.

Respondent was ordered to pay all of her medical bills and expenses (except for $3,000 to be paid by Appellant), and $5,976.67 for a US Bank unsecured line of credit. The Court ordered Respondent to pay a smaller portion of the debt in part because it exercised its discretion to assign debts to Appellant as the party with the greater ability to pay. The Court recognized that Respondent’s total debt burden still exceeds the total liquid assets in her possession.

In awarding $500 per month of permanent maintenance to the Respondent, the Court considered that Respondent has not mastered the English language even to a moderate degree; suffers from serious health issues including recurrent cancer for which she has undergone debilitating chemotherapy; has limited work history and no prospect for significant salary should her health improve; and a modest retirement income of about $300 per month from China. The Court found that Respondent’s prospect for improved economic status is extremely limited; she can’t meet her basic needs on her own; and has no legitimate prospects for acquiring additional assets.

The Court considered the approximately $2,000 per month of social security and pension income Appellant receives; the rental income generated from marital and non-marital properties awarded to Appellant and determined that the non-marital real property at 1708 Glenwood Ave. Minneapolis produced an average net rental income of $9,000 annually (based on federal tax returns for Years 2006-2010). Other real properties were not generating enough income for purposes of calculating maintenance. The Court also reviewed dividends from various stocks owned by Appellant and determined that there is not enough dividend income to affect his ability to pay maintenance.

Based on the above, the court found that Appellant would not generate enough current income to meet his needs and pay a significant amount of maintenance; and that he will likely not make significant employment income. However, the Court found the real properties at 1708 Glenwood and 1702 Glenwood have considerable value, as well as Appellant’s unencumbered non-marital real properties in Milford Pennsylvania and Port Wing Wisconsin.

To prevent the Respondent from walking away without any spousal maintenance, the Court made the parties share the economic hardship of their dissolution. The Court found that the Appellant has been diverting income generated during the marriage to pay expenses on a non-marital family home in Milford Pennsylvania and that he can divest himself of this property and free up cash flow to pay his $500 per month maintenance obligation.

In awarding the Respondent $50,000, the Court considered factors such as the extent to which Appellant had depreciated the marital estate. The Court determined that Appellant had allowed his ex-spouse, Joyce Johnson, to reside in rental property at below market value and that this deprived the marital estate of rental income, thus depreciating the overall marital estate. The Court found Appellant had failed to preserve the marital estate in an amount equal to the unpaid or underpaid rent, the cash payments and credit card usage that he allowed Ms. Johnson to receive, totaling about $86,000.

The Court also stated that if the $86,000 were indeed loans and not gifts to Ms. Johnson, then appellant can use any repayment from Ms. Johnson to meet his $50,000 obligation to Respondent. The Court awarded Appellant the total amounts Appellant had given to Ms. Johnson which increases his total property award by the same amount.

The Court exercised its discretion to award $50,000 to Respondent, justified by the depreciation of the marital estate by Appellant and independent of the dissipation claim asserted by Respondent. The Court reasoned that even without considering the extent of the Appellant’s depreciation of the marital estate, this award is supported by Minn. Stat. Section 518.58, subd. 2, which allows an award of a percentage of Appellant’s non-marital property.

The Court did not make monetary awards to Respondent based on a finding of dissipation under Minn. Stat. Section 518.58, sub. 1a. Rather, it made specific findings and used the word “dissipation” to describe the way in which Appellant let his ex-spouse Ms. Johnson walk away with so much money. The Court did not make a finding of statutory dissipation, but rather found a depreciation of the total marital estate by Appellant.

Section 7. Contents of Record.

Appellant states that a full transcript is necessary for review, but also states that a statement of the proceedings under Rule 110.03 is necessary. Respondent believes that a full transcript of the proceedings is necessary to review the issues on appeal.

Respectfully Submitted,

Lynda Wong

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(41) Appellate Court Order Vacating Stay of Appeal (April 26, 2013) See divorcebook.html, chapter 57.

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:

This appeal was filed on February 20, 2013. Appellant seeks review of a judgment and decree of dissolution entered on December 28, 2012.

In an order filed on February 22, 2013, processing of the appeal was stayed pending mediation.

The mediation associated with this case is complete and none of the issues on appeal settled. The appeal will be returned to the appellate process.

Appellant’s statement of the case indicates that preparation of a full transcript is necessary. Appellant is required to order the transcript from the court reporter and make financial arrangements for the transcription. Minn. R. Civ. App. P. 110.02, subds. 1, 2(a). A completed transcript certificate, signed by appellant and the court reporter, shall be filed with the clerk of the appellate courts as directed below. See Form 110A.

IT IS HEREBY ORDERED:

The stay of this appeal is vacated and the appeal is returned to the appellate process.

A completed transcript certificate, signed by appellant and the court reporter, shall be filed with the clerk of the appellate courts by May 13, 2013.

Briefing shall proceed pursuant to Minn. R. Civ. App. P. 131.01 after the transcript is delivered.

Dated: April 26, 2013.

BY THE COURT

______(s)_________________________

Matthew E. Johnson
Chief Judge

 

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(41) Appellant’s Brief Sent to the Minnesota Court of Appeals (August 7, 2013) See divorcebook.html, chapter 60.

Case No. A13-XXXX

___________________________________________

State of Minnesota

In Court of Appeals

___________________________________________

Chester A. Mack, Jr.
Appellant

vs.

Rose Fen Mack
Respondent

 

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iv

LEGAL ISSUES

Did the trial-court judge have discretion to assign marital debts of $319,736 and marital assets of $113,060 to the Appellant, and marital debts of $5,977 and marital assets of $5,000 to the Appellant as “a just and equitable” division of the marital property of the parties” under Minnesota Statute § 518.58, Subd. 1? 1
Did the trial court make adequate findings of fact to support its division of marital property in failing to declare a total of property to be divided? 2

III. Does marital debt lose its marital character when it is secured by a mortgage on non-marital property, thus justifying its removal from the pool of marital property to be divided? 3
Did the judge properly use $89,000 in “depreciated” assets to justify assigning $313,760 more in marital debt to the Petitioner than to the Respondent? 3
Did the judge properly award shares of stock in Qwest which the parties had sold nine Years before the trial? 4
To determine the amount of spousal maintenance, did the trial-court judge fairly calculate the income shortfall of the two parties from evidence presented at trial? 5

VII. Was there sufficient evidence in the trial record to justify the judge’s finding that the Respondent would have inadequate income, and even be “destitute”, if she did not receive spousal maintenance? 6

VIII. Does the Respondent’s continued ownership of unencumbered non-marital property in China worth $200,000 overcome the trial-court judge’s award of permanent spousal maintenance to her on the grounds that she lacked “sufficient property .. to provide for (her) reasonable needs” as required under Minnesota Statute § 518.552, Subd. 1(a)? 6

Did Respondent’s gift of $90,000 to her daughter from the sale of an apartment in Beijing five months before she filed for divorce constitute a transfer of property in anticipation of divorce? 7

X. Does case law allowing a trial court to award spousal maintenance beyond the obligor's ability to pay overcome the statutory requirement under Minnesota Statute § 518.552, Subd. 2(g) that the award should take into consideration “the ability of the spouse from whom maintenance is sought to meet needs”? 8

XI. Did the trial court base its award of $50,000 of the Appellant’s non-marital property on specific findings of “unfair hardship” as required in Minnesota Statute § 518.58, Subd. 2? 9

STATEMENT OF THE CASE 10 - 14

STATEMENT OF THE FACTS 15 - 24

ARGUMENT

I. The trial court’s distribution of marital property was not just and equitable. 25

II. The court failed to provide a total of marital property to be divided. 30

III. The court improperly changed the nature of debt in the two mortgages from marital to nonmarital. 32

IV. The court penalized the Appellant for “depreciating” assets far more than the dollars warranted. 35

V. The judge awarded shares of Qwest stock no longer owned. 39

VI. The judge used faulty or incomplete numbers in calculating the parties’ income shortfall to justify spousal maintenance. 40

VII. The court had insufficient evidence to conclude that the Respondent would lack future employment opportunities or property or be left destitute unless she received spousal maintenance. 43

VIII. If Respondent has property worth $200,000, she ought not receive spousal maintenance on the grounds of lacking sufficient property to meet her needs. 50

IX. Respondent’s gift of $90,000 to her daughter five months before filing for divorce represents a transfer in anticipation of divorce. 51

X. The trial court overlooked the Appellant’s needs and lack of resources in awarding permanent spousal maintenance to Respondent. 53

XI. The trial court invaded the Appellant’s nonmarital property without the required finding of unfair hardship. 56

CONCLUSION 61

CERTIFICATION OF BRIEF Compliance 63

INDEX TO ADDENDUM

ADDENDUM

 

ABBREVIATIONS

Txxx is a reference to the page number of the transcript of the trial that took place on May 7 and May 8, 2012

Exxx refers to the number of an exhibit introduced and accepted at trial.

Addendum xxx = number of a page in the Addendum

References to a document are in bold face.

External exhibits are numbered A, B, C, D

 

TABLE OF AUTHORITIES

MINNESOTA STATUTES

Minnesota Statute § 518.003, Subd. 3b ............................................ 3, 32, 33, 35
Minnesota Statute § 518.58, Subd. 1 1, 3, 4, 23, 26, 28, 30, 36, 38, 39, 40, 44, 57
Minnesota Statute § 518.58, Subd. 1(a) .................................................. 4, 36, 52
Minnesota Statute § 518.58, Subd. 2 .......................................... 9, 23, 39, 57, 58
Minnesota Statute § 518.552, Subd. 1(a) .................................. 5, 6, 7, 44, 50, 51
Minnesota Statute § 518.552, Subd. 2(g) ............................................ 5, 8, 40, 53

MINNESOTA CASES

Antone v. Antone, 645 N.W. 2nd 96 (Minn. 2002) ........................................ 3, 33
Arundel v. Arundel, 281 N.W.2d 663 (Minn. 1979) .......................................... 28
Bauerly v. Bauerly, 765 N.W.2nd 108, 110 (Minn. App. 2009) ................... 32, 57
Carlson v. Carlson, 391 N.W.2d 80 (Minn. Ct. App. 1986) ..................... 2, 26, 30
City of North Oaks v. Sarpal, 797 N.W. 2nd 18, 23 (Minn. 2011) ............... 25, 57
Crosby v. Crosby, 587 N.W.2d 292 (Minn.Ct. App. 1998) .......................... 26, 28
Dahlberg v. Dahlberg, 358 N.W.2d 76 (Minn. App. 1984) ........................... 8, 53
Davies v. W. Publ’g Co., 622 N.W.2d 836, 841 (Minn. App. 2001) ............. 51, 53
Dick v. Dick, 438 N.W.2d 435 (Minn. Ct. App. 1989) ...................... 26, 28, 30, 44
Filkins v. Filkins, 347 N.W.2d 526 (Minn. App. 1981) ............................ 2, 26, 27
Goldman v. Greenwood, 748 N.W.2d 279, 284 (Min. 2008) ............................ 40
Graeber v. Graeber, 392 N.W.2d 589 (Minn.App. 1986) ............................. 9, 57
Guetzkow v. Guetzkow, 358 N.W.2d 719 (Minn.App. 1984) ............. 2, 3, 26, 30
Hanson v. Hanson, 378 N.W.2d 28 (Minn.App. 1985) .......................... 6, 44, 49
Hemmingsen v. Hemmingsen, 767 N.W.2nd 711, 716 (Minn. App. 2009) 36, 50
Luoma v. Luoma C3-01-704 (September 18, 2001), 2001, W L 1085094 (Minn. App. 2001) .............................................................................................. 4, 36, 38
Maranda v. Maranda, 449 N.W. 2d. 158, 165 (Minn. App. 1989) ................ 26, 27
Mack v. Mack, 363 N.W.2d 881 (Minn.App. 1985) ..................... 31
Moore v. Moore, 391 N.W.2d 42 (Minn.App. 1986) ..................................... 7, 51
Oberle v. Oberle, 355 N.W.2d 210 (Minn. App. 1984) ..................................... 29
O’Brien v. O’Brien, 343 N.W.2d 850 (Minn. 1984) ....................................... 3, 31
O’Donnell v. O’Donnell, 678 N.W.2nd 47, 474 (Minn. App. 2004) .................... 44
Parker v. Parker, 1997 WL 658938, *4 (Minn. App. 1997) ................................ 55
Putbrese v. Putbrese, 386 N.W.2d 849 (Minn.App. 1986) ............................ 3, 31
Rosenberg v. Rosenberg, 379 N.W.2d 580 (Minn.App. 1985) ..................... 8, 53
Seidl v. Seidl, 1998 WL 8480 (Minn. App. 1998) ..................... 5, 8, 40, 53, 54, 55
Stageberg v. Stageberg, 695 N.W.2d 609 (Minn.App. 2005) ....................... 9, 58
Stich v. Stich, 435 N.W.2nd 52, 53 (Minn. 1989) ............................................... 26
Jensen v. Nickaboine, 793 N.W. 2nd 738, 741 (Minn. 2011) ......................... 30
Ward v. Ward, 453 N.W.2d 729 (Minn.App. 1990) ........................................ 9, 58
Wolter v. Wolter, 395 N.W.2d 417 (Minn.App. 1986) .............................. 9, 57, 60

MINNESOTA RULES

Minnesota Rules of Civil Appellate Procedure, Rule 103.03 ............................. 14
Minnesota Rules of Civil Appellate Procedure, Rule 103.04 ............................. 61
Minnesota Rules of Civil Appellate Procedure, Rule 131.01 ............................. 14

OTHER AUTHORITIES

Minnesota Family Law Practice Manual, Property Division (Family Law Institute) .....................................60

LEGAL ISSUES

Issues are raised in three areas: (a) with respect to the division of marital property, (b) with respect to spousal maintenance, and (c) with respect to awarding Appellant’s non-marital property to Respondent.

A. Issues related to division of marital property

I. Did the trial-court judge have discretion to assign marital debts of $319,736 and marital assets of $113,060 to the Appellant, and marital debts of $5,977 and marital assets of $5,000 to the Appellant as “a just and equitable” division of the marital property of the parties” under Minnesota Statute § 518.58, Subd. 1?

1) In post-trial motion for “amended findings of fact/conclusions of law or, alternatively, a new trial” filed on August 20, 2012, Appellant moved that the judge amend his findings of fact to include debts totaling $329,732.14 per exhibits presented at trial. Appendix 28 (¶ A (2) a. v., A.7) As an equalizer, he proposed that Respondent would assume $100,000 of the debt by giving Appellant a non-interest-bearing note. Appendix 36 (¶ B.12) See See C. Grounds for proposed amendment Appendix 18-20 ¶ 7, ¶ 8, ¶ 9, ¶ 10, ¶ 12.

2) The judge denied all amendments to the findings regarding the parties’ financial circumstances set forth in his earlier memorandum. Addendum 1 (Order 2) The judge granted certain minor adjustments in value or assignment of debts. Addendum 1 (Order 3)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).
4) Minn. statute § 518.58, Subd. 1, Filkins v. Filkins, 347 N.W.2d 526 (Minn. App. 1981), Carlson v. Carlson, 391 N.W.2d 80 (Minn. Ct. App. 1986), Guetzkow v. Guetzkow, 358 N.W.2d 719 (Minn.App. 1984)

II. Did the trial court make adequate findings of fact to support its division of marital property in failing to declare a total of property to be divided?

1) Appellant moved that the judge amend his findings of fact to include debts totaling $329,732.14 per exhibits presented at trial. Appendix 28 (¶ A (2) a. v.) See See C. Grounds for proposed amendment Appendix 40 ¶ 1

2) The judge denied all amendments to the findings regarding the parties’ financial circumstances set forth in his earlier memorandum. Addendum 1 (Order 2) He again failed to provide a total or marital property.

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minn. statute § 518.58, Subd. 1, Putbrese v. Putbrese, 386 N.W.2d 849 (Minn.), Guetzkow v. Guetzkow, 358 N.W.2d 719 (Minn.App. 1984), O’Brien v. O’Brien, 343 N.W.2d 850 (Minn. 1984)

III. Does marital debt lose its marital character when it is secured by a mortgage on non-marital property, thus justifying its removal from the pool of marital property to be divided?

1) The Appellant moved that the judge amend his findings of fact to acknowledge that marital debt includes the mortgages at 1702 Glenwood Avenue and at 1715 Glenwood Avenue in Minneapolis. Appendix 34 (A. 7) See See C. Grounds for proposed amendment Appendix 40 - 42 (¶ 3, ¶ 4, ¶ 5, ¶ 6)

2) The judge denied the motion to strike language that Appellant had agreed to assume both mortgages. Addendum 1 (Order 4)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minn. statute § 518.003, Subd. 3b, Antone v. Antone, 645 N.W.2d 96 (Minn. 2002)

IV. Did the judge properly use $89,000 in “depreciated” assets to justify assigning $313,760 more in marital debt to the Petitioner than to the Respondent?

1) The Appellant’s motion for amended findings proposed to omit a deduction from marital property for dissipated assets. See C. Grounds for proposed amendment Appendix 44 - 46, Appendix 61 ¶ 13, ¶ 14, ¶ 15, ¶ 16, ¶ 17, ¶ 18, 54(i)

2) The judge substituted an argument based on depreciated assets for his earlier dissipation claim. Addendum 13-14

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minn. statute 518.58, Subd. 1, Minn. statute § 518.58, Subd. 1a, Luoma v. Luoma C3-01-704 (September 18, 2001), 2001, W L 1085094 (Minn. App. 2001)

V. Did the judge properly award shares of stock in Qwest which the parties had sold nine Years before the trial?

1) The Appellant moved that the judge correct errors of fact in his findings of fact. Appendix 37 (B. IV. 6) See See C. Grounds for proposed amendment Appendix 60 ¶ 54(b)

2) The judge again awarded the shares of Qwest stock. Addendum 48(Conclusions of Law IV.)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minn. statute § 518.58 , Subd. 1

B Issues related to the award of spousal maintenance

VI. To determine the amount of spousal maintenance, did the trial-court judge fairly calculate the income shortfall of the two parties from evidence presented at trial?

1) The Appellant moved to amend the finding of fact to recognize that, unlike the Appellant, the Respondent is debt free and has unknown financial assets Appendix 27 - 31 (A. 2 a v. , A. 2 b iii., A. 2 b iv., A. 3 b i.) and to modify the order for permanent spousal maintenance with respect to the term. Appendix 36 (B II ). See C. Grounds for proposed amendment Appendix 50 - 53 (¶ 30, ¶ 31, ¶ 32, ¶ 33, ¶ 34, ¶ 35)

2) In his order dated July 20, 2012, the judge denied the motion to modify the term of spousal maintenance in Conclusion of Law II. Addendum 2 (Order 5) He denied all amendments to the findings regarding the parties’ financial circumstances set forth in his earlier memorandum. Addendum 1 (Order 2)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minnesota statute § 518.552, MSA § 518.552, Subd. 2(g), Seidl v. Seidl, 1998 WL 8480 (Minn. App. 1998)

VII. Was there sufficient evidence in the trial record to justify the judge’s finding that the Respondent would have inadequate income, and even be “destitute”, if she did not receive spousal maintenance?

(1) The Appellant moved to amend the finding of fact to recognize that Respondent lives rent free in daughter’s condo Appendix 29 (A 2 b ii.), has no debt Appendix 30 (A 2 b iv.), owns a rentable condo in Beijing Appendix (A 2 b v.), and has other undisclosed property in China Appendix 33 (A 3 h.). He also moved to modify the order for permanent spousal maintenance with respect to the term. Appendix 36 (B II ). See C. Grounds for proposed amendment Appendix 56 - 59 (¶ 43, ¶ 44, ¶ 45, ¶ 46, ¶ 47, ¶ 48, ¶ 49, ¶ 50, ¶ 51)

2) The judge denied the motion to modify the term of spousal maintenance. Addendum 2 (Order 5) The judge denied all amendments to the findings regarding the parties’ financial circumstances set forth in his earlier memorandum. Addendum 1 (Order 2)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minnesota statute § 518.552, Hanson v. Hanson, 378 N.W.2d 28 (Minn. App. 1985)

VIII. Does the Respondent’s continued ownership of unencumbered non-marital property in China worth $200,000 overcome the trial-court judge’s award of permanent spousal maintenance to her on the grounds that she lacked “sufficient property .. to provide for (her) reasonable needs” as required under Minnesota Statute § 518.552, Subd. 1(a)?

1) Appellant moved to amend Conclusions of Law II to limit maintenance to six months. C. Grounds for proposed amendment Appendix 59 ¶ 52

2) The judge denied this motion. Addendum 2 (Order 5)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minnesota statute § 518.552, Subd. 1(a)

IX. Did Respondent’s gift of $90,000 to her daughter from the sale of an apartment in Beijing five months before she filed for divorce constitute a transfer of property in anticipation of divorce?

1) The Appellant moved to amend the findings of fact to recognize that Respondent sold a condo in Beijing five months before the divorce and provided the down payment for her condo. Appendix 29 (A

2 b ii.) See C. Grounds for proposed amendment Appendix 48 ¶ 24

2) The judge denied this motion. Addendum 1 (Order 2)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minnesota statute § 518.552, Subd. 1(a), Moore v. Moore, 391 N.W.2d 42 (Minn. App. 1986)

X. Does case law allowing a trial court to award spousal maintenance beyond the obligor's ability to pay overcome the statutory requirement under Minnesota Statute § 518.552, Subd. 2(g) that the award should take into consideration “the ability of the spouse from whom maintenance is sought to meet needs”?

1) The Appellant moved to amend the finding of fact to recognize that Appellant has few liquid assets Appendix 27 (A 2 a i.), is not earning a profit from his rental-property business Appendix 27 (A 2 a ii.), and has monthly interest obligations that exceed his retirement income Appendix 28 (A 2 a iii.) He moved to modify the order for permanent spousal maintenance with respect to the term. Appendix 36 (B II ). See C. Grounds for proposed amendment Appendix 52 - 53 ¶ 35, ¶ 36, ¶ 37

2) The judge denied the motion to modify the term of spousal maintenance in Conclusion of Law II. Addendum 2 (Order 5) The judge denied all amendments to the findings regarding the parties’ financial circumstances set forth in his earlier memorandum. Addendum 1 (Order 2)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minn. statute § 518.552, Subd. 2(g), Seidl v. Seidl, 1998 WL 8480 (Minn. App. 1998), Dahlberg v. Dahlberg, 358 N.W.2d 76 (Minn. App. 1984), Rosenberg v. Rosenberg, 379 N.W.2d 580 (Minn. App. 1985)

C Issues related to the invasion of the Appellant’s non-marital property

XI. Did the trial court base its award of $50,000 of the Appellant’s non-marital property on specific findings of “unfair hardship” as required in Minnesota Statute § 518.58, Subd. 2?

1) The Appellant moved that the judge rescind the order requiring Appellant to pay $50,000 from his nonmarital assets. Appendix 37 (B. IV.7) See C. Grounds for proposed amendment Appendix 53 - 55 (¶ 38, ¶ 39, ¶ 40, ¶ 41, ¶ 42)

2) The judge denied the motion to rescind the order requiring Appellant to pay $50,000 from his nonmarital assets. Addendum 2 (Order 6) The judge denied all amendments to the findings regarding the parties’ financial circumstances set forth in his earlier memorandum. Addendum 1 (Order 2)

3) The Appellant filed a Notice of Appeal (Appendix 118) and Statement of the Case on February 20, 2013 (Appendix 119-128).

4) Minn. statute § 518.58, Subd. 2, Wolter v. Wolter, 395 N.W.2d 417 (Minn. App. 1986), Graeber v. Graeber, 392 N.W.2d 589 (Minn.App. 1986), Ward v. Ward, 453 N.W.2d 729 (Minn.App. 1990), Stageberg v. Stageberg, 695 N.W.2d 609 (Minn.App. 2005)

STATEMENT OF THE CASE

Trial court: The case was tried in Hennepin County Family Court by Chief Judge Stephen W. Jensen on May 6 and May 7, 2012. This was a case of marriage dissolution without children.
The trial court’s ruling: The marriage was dissolved in an order dated July 20, 2012, and the following property settlements were ordered. (1) The trial court ordered the Appellant to pay marital debts totaling $319,736 and ordered the Respondent to pay marital debts of $5,977. It awarded Appellant marital assets of $113,060 and the Respondent marital assets of $5,000. Addendum 62 Exhibit A (2) The trial court ordered the Appellant to pay $500 per month in permanent spousal maintenance. (3) The trial court ordered the Appellant to pay $50,000 from his non-marital assets in five equal installments beginning October 1, 2012.

Case history:
Chester and Rose Mack were married in Beijing, China, on January 28, 2000. Rose and daughter Violet arrived in the United States on July 31, 2001. Chester Mack owned several residential buildings which he rented. Nevertheless, he steadily lost money during the marriage and, despite sale of several pre-marital properties, was more than $300,000 in debt when Rose filed for divorce. The couple had no children.

Rose Fen Mack filed for divorce in Hennepin County on March 8, 2011. Her attorney was Su-Mei Kang Ming of The Kang Ming Law Firm. Her husband, Chester Arthur Mack, responded to the dissolution petition on March 16, 2011. He engaged the services of attorney Frederick D. Smith.

The Initial Case Management Conference was scheduled on April 15, 2011, before Hennepin County Family Court referee Alice Raleigh. The next seven months were marked by a cancelled FENE engagement and a fruitless mediation session.

Referee Raleigh set a trial date of May 6 and 7, 2012. Chester Mack wrote a letter to the court asking that the trial date be accelerated. Appendix 141-143 (Exhibit B) Attorney Smith then resigned as his legal representative.

Unproductive settlement negotiations ensued for the next two months followed by Respondent’s motion for temporary maintenance. Referee Raleigh did not order temporary maintenance but deferred all substantive questions to the trial court. The weeks preceding the May 6th trial were marked by numerous letters from attorney Kang Ming to the court complaining of Chester Mack’s behavior as a self-represented person.

How the issues were raised in the trial court: Family court referee Alice Raleigh resigned her position in early 2012 for medical reasons. To save trial time, Judge Ruth Washington held a “settlement conference” with the parties on May 1, 2012. They reached certain agreements expressed in a one-page document presented at trial.
Chief Judge Stephen F. Jensen then presided over a two-day trial held on May 7 and May 8, 2012. The Respondent was represented by attorney Su-Mei Kang Ming. The Appellant represented himself. The Respondent’s case was centered in claims of substantial work done to improve the Appellant’s real estate to justify a $300,000 marital interest in his non-marital properties. The Appellant’s argument was focused upon presenting evidence relating to marital assets and debts.

The judge blamed the Appellant for not numbering his exhibits properly and insisted on an irregular numbering scheme that caused confusion during the trial. The Appellant had to discontinue his testimony in the mid afternoon when he could not find exhibits being reviewed by Respondent’s attorney. T376 He never rested his case but was given ten additional minutes for testimony toward the end of the trial. The judge abruptly ended the trial as the Appellant was trying to wrap up his case. T445 He denied both parties the opportunity to make closing statements. (For further details, see Appellant’s post-trial motion for a new trial.)

Post-trial motions: Judge Jensen issued his ruling on July 20, 2012. Judge Jensen denied Appellant’s application to extend his In Forma Pauperis status to ordering trial transcripts saying he would need to see the Notice of Appeal first. Appendix 144-146 Exhibit C The Appellant filed post-trial motions on August 20, 2012, petitioning the trial court to amend its findings of fact and conclusions of law or, alternatively to grant a new trial. A motion to stay the execution of the award of the payments totaling $50,000 from Appellant’s non-marital property was also included in this set of motions.

Because the payments were scheduled to begin on October 1st but the hearing on his post-trial motions would be on October 9th, Appellant filed another motion regarding the stay of execution. The Respondent’s attorney filed a response in a document signed on October 3, 2012. Her response did not address issues raised in Appellant’s post-trial motions but instead accused Appellant of misconduct in filing the second set of motions.

On October 9, 2012, both parties participated in a half-hour hearing on the post-trial motions before Judge Stephen W. Jensen. They were each limited to ten minutes of testimony.
On September 24, 2012, Judge Jensen granted Appellant a stay of execution for payment of $50,000 if the Appellant obtained a security bond for $51,000. However, the bond companies required matching deposits or lines of credit from a bank, which the Appellant after repeated attempts was unable to obtain.

The post-trial ruling: Judge Jensen issued orders on December 28, 2012, with respect to amended findings of fact/ conclusions of law. His order did not address the motions for a new trial or stay of execution. The judge granted certain amended findings of fact with respect to items of property, changed a finding regarding Appellant’s domestic-abuse case, assigned $5,976.67 of marital debt to the Respondent, and made Responsible for the tax consequences of her sold apartment in Beijing. Otherwise, provisions of the previous order remained in effect. The post-appeal case was assigned back to Judge Jensen from referee Mark Labine.

Rule 103.03 of the Minnesota Rules of Civil Appellate Procedure allows appeal of a final judgment from the trial court to the Minnesota Court of Appeals.
The Appellant filed a Notice of Appeal and Statement of the Case on February 20, 2013.

On February 22, 2013, the parties were ordered to undergo mediation. The session, which took place on March 21, 2013, proved unsuccessful in producing a settlement. On April 26, 2013, the Court of Appeals then vacated the stay of appeal.

The trial transcripts were delivered on July 8 and 16, 2013. Briefing was to proceed pursuant to Minn. R. Civ. App. P. 131.01 after the transcript was delivered. On August 2, 2012, the court denied Appellant’s motion for an expanded brief.

 

STATEMENT OF THE FACTS

The issues raised by Appellant in his post-trial motions for amended findings of fact/ conclusions of law had to do primarily with property awards. However, he also filed motions for a new trial and for stay of execution of the payments from his nonmarital property. On December 28, 2012, the judge ruled on the first set of motions but not on the remaining two.

There were three property awards appealed by the Appellant: (A) the division of marital property, mostly debt, which assigned 98.2 percent of the $325,713 marital debt to the Appellant (Addendum 62 Exhibit A), (B) permanent spousal maintenance of $500 per month paid to the Respondent, (C) five consecutive monthly payments of $10,000 apiece to Respondent, starting October 1, 2012, to be extracted from Appellant’s nonmarital real estate.

With respect to the division of marital property:

The following pieces of property were identified as marital assets: a duplex at 1715 Glenwood Avenue, Minneapolis, and adjoining land worth $110,000 and a 401(k) worth $5,000. Exhibit 300 There were other assets totaling $1,721.76 (Addendum 62 Exhibit A). The asset total was $116,721.76.

The parties had the following debts: a mortgage with NationStar for $173,000 (Exhibit 208), a mortgage with US Bank for $84,017.51 (Exhibit 209), a VISA Omaha credit card with a balance of $8,356.42 (Exhibit 200), a Chase credit card for $3,728.00 (T9), an Advanta card for $2,630.50 (T9), US Bank lines of credit ending in 2961 for $39,628.01 (T29) and ending in 0914 for $5,976.67 (T29), a Citibusiness credit card for $12,001.85 (Exhibit 389), and a Menards credit card for $1,893.52 (Exhibit 390). These debt items total $331,232.48 (Addendum 62 Exhibit A). See T314, T315, T387

Testimony given at trial indicates that Appellant had $5,519.45 in debt at the time of marriage on 1/28/00 (T308-T312) and Respondent had no debt (T97). The total debt was $5,519.45. The marital debt was therefore $325,713.03 ($331,232.48 minus $5,519.45). The marital property to be divided was a negative $208,014.60 ($116,721.76 in assets and $325,713.03 in marital debt).
Minnesota statute § 518.58, Subd. 1 requires the trial court to make findings regarding the division of marital property based on “all relevant factors.”

The judge made no such findings with respect to the division of marital property although he did make findings with respect to invasion of nonmarital property. Addendum 44-45 ¶ 102-103 No explanation was given as to why the findings favored an award (of nonmarital property) to one party rather than to the other. The “relevant factors” include the following evidence in the record:

1. Length of the marriage: “about eleven Years” Addendum 44 ¶ 102

2. Any prior marriage of a party: no testimony given Addendum 44 ¶ 102

3. Age: Appellant is 71; Respondent is 56. T77, T85, Addendum 44 ¶ 102

4. Health: Appellant needs extensive dental work, has stress-related illness, and suffers from lingering effects of the mumps. Exhibit 24A Respondent had an injury to her leg at work in 2006 and an operation for breast cancer in 2009. She takes insulin and avoids sugar in her diet. T-228 She had several surgeries plus chemotherapy. Cancerous activity was later found in the intestines and lungs. T257 Respondent testified that she has diabetes and needs insulin. T379 There was no testimony given regarding the current state of Respondent’s cancer, the likelihood of recurrence, or the impact of the cancer operation on Respondent’s future employability. Respondent objected to a discovery request for her medical bills. Exhibit 118, Request #3

5. Station: No information was available for either party.

6. Occupation: Appellant owns and manages rental property. Respondent is currently a housewife but worked at Target for three and a half Years until 2006 in the clothing department. T226-T227, Exhibit 118 #4

7. Amount and sources of income: Appellant receives around $2,000 per month from a pension and Social Security. T102 He owns a rental-property business that has consistently lost money. Exhibits 14-18 Respondent: She receives 2,190 renmimbi (about $320) in Chinese retirement income. T103 Alternatively, she has $400 monthly income (Exhibit 5) or $780 in monthly income. Appendix 81 ¶ 1

8. Vocational skills: No information was revealed other than what can be inferred from the facts that the Appellant has worked as an accountant and and that Respondent is a thrifty shopper who worked in the clothing department at Target for three and a half Years. There was no testimony regarding Respondent’s employment in China. The Respondent refused to answer an interrogatory question about her Chinese employment and income (Exhibit 118 #3) saying the question was irrelevant.

9. Employability: There was no direct evidence regarding the employability of either party. However, the judge drew strong inferences from testimony regarding Respondent’s health and her alleged lack of English skills. Addendum 45 ¶ 102

The facts regarding Appellant’s health have been presented above. Regarding her English-speaking ability, the judge concluded that Respondent could not speak English, “even to a moderate degree”, because her testimony in the court was given entirely through Chinese-language interpreters. Addendum 28-29 ¶ 60 The fact that she did not blurt out some answers in English convinced the judge that she could not speak English. Addendum 29 ¶ 60

Other evidence of Respondent’s English abilities came in testimony from her friend, Nancy Chen, who testified that Respondent “can’t express herself properly in English at all” although they always conversed in Chinese. T228-T229 When asked how she knew the Respondent did not speak English well if they never spoke in English, Nelson said she had heard Respondent speaking English with her husband on the telephone. T232

It should also be noted that the ability to speak Chinese fluently could be an employment asset, certainly in China but also in a position such as Respondent’s daughter’s of being a Chinese linguist (T234).

10. Estate: No information is available for either party.

11. Liabilities: Appellant was ordered to assume $319,736 of the marital debt; Respondent assumed the remaining $5,976.67 of debt. Addendum 150 (VI., VII.)

12. Needs: Appellant’s needs budget disclosed in Exhibit 24A totaled $2,070 per month. However, not expecting to be assigned nearly all the marital debt, Appellant reported $150 per month in personal interest expense. He testified at trial that his current interest expense exceeded his retirement income. T370 Respondent testified that she needs $2,000 per month for living expenses including $1,000 for housing. T115 See also Exhibit 5.

13. Opportunity for future acquisition of capital assets: The judge stated as an unsupported conclusion that the Respondent has “no legitimate prospects of acquiring additional capital assets”. Addendum 45 ¶ 102 The judge ignored the Appellant’s testimony regarding his own situation. T370 There was little evidence on this question.

14. Income: The parties’ income from 2006 to 2010 has consistently been in a range between $20,000 and $30,000 a Year on the federal income-tax return. Exhibits 14-18 However, some of this represents dividends from stocks no longer owned. The rental-property business has consistently lost money. The Appellant will have an income below $20,000, perhaps even below $10,000. Exhibits 14-18 In the past ten Years, his debt increased an average of more than $30,000 per year. T312, T314 The Respondent has unknown income. It will depend on whether she finds gainful employment or receives disability assistance from the government. As a practical matter, she will share household expenses with her employed daughter. (T108, T153)

Minnesota statute § 518.58, Subd. 1 also requires the trial court to take into consideration a spouse’s contribution as a homemaker. The parties were married on January 28, 2000. Respondent and her daughter arrived in the United States on July 31, 2001. Respondent worked at Target for three and a half years ending in May, 2006. T226 Witness Joe Nelson who lived in Appellant’s rental property and was its maintenance manager throughout the marriage (T348) testified that, after 2006, Respondent lived together with Appellant in Minneapolis “less than 20 percent of the time”. T351 T384 Evidence of Respondent’s many trips to Asia is found in 18 visa stamps in her U.S. passport from Asian countries (Exhibit 393) since she became a citizen in July 2009. Exhibit 375 While in Asia, she went on trips to Guangxi province, Vietnam, and Korea by herself. Exhibit 118 #14

Considerations of equity: Appellant spent $113,000 on Respondent and daughter above and beyond normal household expenses during the marriage. Exhibits 353-359 He helped both become U.S. citizens. He helped pay for the daughter’s education at Carleton college. Respondent did not have any child-care obligations. She paid few of the household expenses, instead putting $5,000 into a 401(k). During the marriage, Appellant sustained a loss of net worth around $500,000 while Respondent gained $150,000 in net worth. T443 It is unfair for the trial court to divide the marital debt in such a lopsided way in favor of Respondent.

With respect to the award of permanent spousal maintenance:

The judge used a calculation based on the parties’ needs budgets to “share the hardship” resulting in a $500 monthly award of permanent spousal maintenance to the Respondent. The needs budgets documented the expenses. The judge ignored Respondent’s Exhibit 5 submitted as a needs budget in favor of live testimony. T115-T116

The judge failed to mention the income for either party in his calculation of the income shortage. However, it may be assumed from the fact that the judge reduced the Respondent’s needs to $1,000 per month and ordered the Appellant to pay $500 per month to Respondent as an equalizing “sharing the hardship” award that the judge used zero income for the Respondent and $2,070 monthly income for the Appellant in his calculation. Addendum 29 - Addendum 32 ¶ 63-68

The assumption of zero income for the Respondent conflicts with the record. See T103, Exhibit 5 and Appendix 81 1. With respect to Appellant, the judge has ignored testimony that the interest on the debt which he must pay each month exceeds the Appellant’s monthly retirement income. T370-T371, T433 Therefore, his expenses would be much greater than $2,070 per month.

The judge presents a picture of financial hardship for the Respondent which is unsupported by evidence. The arguments are rooted in the ideas that Respondent cannot obtain meaningful employment because of her health problems and the fact that she cannot speak English “even to a moderate degree.” (Addendum 28-29 ¶ 60, Addendum 44 ¶ 102) Those issues are considered above (under “health” and “employability”). The judge also misrepresents the record is saying that the Respondent “worked at Target for a short time”. Addendum 29 ¶ 61 She worked there for three and a half years. T226 That is not “a short time”. Elsewhere the judge finds that the Respondent has “a limited work history” when no evidence has been submitted regarding her employment in China. Addendum 44 ¶ 102, Exhibit 118 #3 Respondent’s job at Target was not insignificant. Target recognized her for good work performance. Exhibit 374

Minnesota Statute § 518.552, Subd. 1 (a) suggests that spousal maintenance might be appropriate where one party “lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education.”

In this case, however, the Respondent is allowed to keep a $200,000 condominium in Beijing (T372, Addendum 48 IV. 1.), the marital debt has been apportioned mostly to the Appellant (Addendum 50 VI. & VII.), the standard of living established during the marriage was “frugal” (T-225), and permanent maintenance is ordered despite the possibility of job training (Addendum 47 II.).
Minnesota Statute § 518.552, Subd. 1 (b) allows spousal maintenance where a party is unable to obtain adequate income or has child-care responsibilities that preclude employment. In this case, the record fails to establish Respondent’s lack of suitability for employment (see above discussion above) and she has no child-rearing responsibilities. Addendum 20 9. In granting this award the judge also fails to take into consideration Appellant’s inability to support himself and also pay maintenance. (Addendum 45-46 ¶ 104, Addendum 38 ¶ 86).

(C) With respect to the award of Appellant’s nonmarital property to Respondent:

Minnesota statute § 518.58, Subd. 2 allows an award of up to 50 percent of either party’s nonmarital property “if the court finds that either spouse’s resources or property, including the spouse’s portion of the marital property ..., are so inadequate as to work an unfair hardship ... If the court apportions property other than marital property, it shall make findings in support of the apportionment.”

The items and values of nonmarital property, principally real estate, are established both in testimony and the judge’s order. Addendum 47-49 The judge’s stated reasons for awarding nonmarital property do not include “unfair hardship”. Addendum 38 ¶ 84, Addendum 46 ¶ 105 The analysis based on the statutory factors, especially employability and prospective income, lack a foundation in evidence. (See above analysis under “health”, “employability”, and “vocational skills”. ) Respondent retains property in China worth more than $200,000. T372 The judge ignores Appellant’s testimony regarding his own destitute condition (T370, T345, Exhibit 384) while no such testimony or evidence was given with respect to the Respondent. While the Respondent assumed $5,976 in marital debt, the Appellant was ordered to assume $319,736 of this debt (Exhibit A), in addition to paying permanent spousal maintenance. Addendum 47 II. This is not “unfair hardship” from the Respondent’s standpoint.

ARGUMENTS

Introduction: The arguments relate to: (A) the distribution of marital property, mainly debt, (B) the award of spousal maintenance, and (C) the invasion of the Appellant’s non-marital property. The issues raised by the judge’s order on December 28, 2012, are stated as questions in “Legal Issues” and as Appellant’s claims in the “Arguments” section. There are eleven separate claims.

A Issues related to the distribution of marital property

I. The trial court’s distribution of marital property was not just and equitable.

The Issue: Did the trial-court judge have discretion to assign marital debts of $319,736 and marital assets of $113,060 to the Appellant, and marital debts of $5,977 and marital assets of $5,000 to the Appellant as “a just and equitable” division of the marital property of the parties” under Minnesota Statute § 518.58, Subd. 1?

Standard of review: This a question of law. Such a lopsided division is neither just nor equitable. The court exceeded the bounds of reason. “We have said that we review equitable determinations for an abuse of discretion.” City of North Oaks v. Sarpal, 797 N.W.2nd 18, 23 (Minn. 2011) The reasons for departing from an equal or nearly equal division did not follow statute and were unreasonable. “Generally, the district court’s failure to make findings on relevant statutory factors requires a remand.” Stich v. Stich, 435 N.W.2nd 52, 53 (Minn. 1989)

Authorities: Minn. Statute § 518.58, Subd. 1 Carlson v. Carlson, 391 N.W.2d 80 (Minn. Ct. App. 1986), Guetzkow v. Guetzkow, 358 N.W.2d 719 (Minn.App. 1984), Filkins v. Filkins, 347 N.W.2d 526 (Minn. App. 1981), Arundel v. Arundel, 281 N.W.2d 663 (Minnesota Supreme Court 1979) Dick v. Dick, 438 N.W.2d 435 (Minn. Ct. App. 1989), Crosby v. Crosby, 587 N.W.2d 292 (Minn.Ct. App. 1998)

(a) The trial-court judge reasoned that equity depends on the fairness of the overall distribution rather than fairness of the individual components. Addendum 5-6 By implication, the judge in representing the citizens of Minnesota had unlimited discretion to decide the distribution. Maranda v. Maranda, 449 N.W. 2d. 158, 165 (Minn. App. 1989)

Response: There was no equity or fairness in the overall settlement. The judge ordered the Appellant to assume 98.2 percent of the $325,713 marital debt, pay $500 per month in permanent spousal maintenance, and make payments totaling $50,000 from his nonmarital assets. These extreme awards disfavored the Appellant in all cases. (See Addendum 62 Exhibit A, Addendum 47 II., Addendum 48 IV.6.)

The judge reasoned that his rejection of the Respondent’s claim to a substantial marital interest in Appellant’s nonmarital properties due to work performed was a balancing factor in favor of the Appellant. Addendum 5-6 Yet testimony at trial revealed that the claim was based on a nearly complete fabrication. T348-T350 The judge himself wrote: “ Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by Petitioner (Respondent) herein were about as weak and unjustified as I have encountered during my many Years as a Family Court judge.” Addendum 39 ¶ 89 The facts, not a desire to balance awards, drove that decision.

Maranda v. Maranda 449 N.W. 2d. 158, 165 (Minn. App. 1989) is the source of language used by the judge that “in dissolution cases, the court sits as a third party, representing all of the citizens of the State of Minnesota to see that a fair property distribution is made.” However, this principle is stated here in the context of preferring a broader, rather than narrower, definition of fraud on the court. The judge improperly uses the Maranda statement to relax the statutory requirement of M.S.A. § 518.58 generally in favor of judicial discretion.

Statute, not judicial discretion, should govern the distribution of marital property. Filkins v. Filkins, 347 N.W.2d 526 (Minn. App. 1981) Courts have no power to apportion property in a dissolution except by statute; debts are apportionable under Minnesota’s statute.

(b) The judge reasoned that it was equitable to assign more marital debt to the Appellant because he had more non-marital property and, therefore, a greater ability to pay. Addendum 17, Addendum 33 ¶ 73

Response: The judge acknowledged that the Appellant had limited investment income and few prospects for future employment. Addendum 45 ¶ 104 Referring to Appellant’s nonmarital real estate, the trial-court judge reasoned that “case law explains that the trial court may exercise its discretion to assign debts to the party with greater ability to pay.” Addendum 17 He ruled, in effect, that the Appellant had a greater ability to pay because the value of his non-marital real estate exceeded that of the Respondent.

Neither statute nor case law supports the idea that “ability to pay” in a divorce proceeding is equated with possession of non-marital property. Instead, it is ability to pay from resources acquired in the future such as wages, dividends, or interest.

(c) The judge reasoned that case law gives the trial-court judge discretion to distribute marital debts any way he wants. Addendum 5 (footnote 2), Addendum 33 ¶ 73-75. See also Addendum 45 ¶ 103
Response: MSA § 518.58, Subd. 1 states that the distribution of marital property, both assets and debts, should be “just and equitable” which, in the absence of others factors, implies an equal division. Arundel v. Arundel, 281 N.W.2d 663 (Minnesota Supreme Court 1979) Dick v. Dick, 438 N.W.2d 435 (Minn. Ct. App. 1989), Crosby v. Crosby, 587 N.W.2d 292 (Minn.Ct. App. 1998)

The five cases cited by the judge were grossly dissimilar to the case decided here. With one exception, the parties given a disproportionate share of the debt had annual incomes ranging from $72,300 to $112,000. The wives were unemployed or marginally employed, sometimes serving as caretakers for minor children. In this case, however, the Appellant has effectively had negative income for a number of years while the wife had chosen to quit a job. There are no minor children. The marital debt is much greater. The Minnesota Supreme Court has said: “Each case must be considered in light of its own particular facts.” Oberle v. Oberle, 355 N.W.2d 210 (Minn. App. 1984)

Minnesota Statute 518.58 Subd. 1 requires the judge to distribute marital property, including debt, in a manner which is “just and equitable, without regard to marital misconduct, after making findings ... on all relevant factors” and after considering each party’s role in the “acquisition, preservation, depreciation, or appreciation” of the marital estate “as well as the contribution of the spouse as a homemaker.” In this case, the judge appears only to have considered only the Appellant’s role in depreciating the property. E24A #36

The judge did not cite either the statutory factors (age, health, station, etc.) under 518.58, Subd. 1 or the homemaker’s presumed contribution in justifying his grossly unequal division of marital debt although the statutory grounds were cited with respect to invading nonmarital property. See Addendum 44-45 ¶ 102.

The homemaker’s contribution was comparatively light for a marriage lasting eleven years. See “Statement of the Facts”, A. (second to last paragraph) After 2006, Respondent lived with her husband “less than twenty percent” of the time. T351

Conclusion: It is necessary to make findings based on the statutory factors in dividing marital property. Carlson v. Carlson, 391 N.W.2d 80 (Minn. Ct. App. 1986), Guetzkow v. Guetzkow, 358 N.W.2d 719 (Minn.App. 1984), Dick v. Dick, 438 N.W.2d 436 (Minn. App. 1989) An unequal distribution of marital property “did not comply with statute requiring detailed findings in connection with such distribution. M.S.A. § 518.58”

II. The court failed to provide a total of marital property to be divided.

The Issue: Did the trial court make adequate findings of fact to support its division of marital property in failing to declare a total of property to be divided?
Standard of review: The trial court failed to provide a dollar total in making a division of marital property. Without such a total, there cannot be findings of fact with respect to fairness. It a question of law whether a total of dollars of marital property to be divided is required for adequate findings of fact under Minnesota Statute § 518.58, Subd. 1. “Interpretation of a statute presents a question of law which we review de novo.” Jensen v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011)

Authorities: Minn. Statute § 518.58, Subd. 1

Putbrese v. Putbrese, 386 N.W.2d 849 (Minn. App. 1986) The trial court did not make adequate findings of fact in dividing marital property ... we remand this case to the trial court for express findings on the division of marital property.

O’Brien v. O’Brien, 343 N.W.2d 850 (Minn. 1984) “The law precludes any consideration of a property division or appeal when the trial court must speculate due to the fact that the evidence is lacking or nonspecific.”

McGaughey v. McGaughey, 363 N.W.2d 881 (Minn.App. 1985) The case was remanded to the trial court to clarify ambiguous findings regarding the parties’ marital property.
(a) In defense of his failure to provide a total, the judge reasoned: “No accounting was introduced by Respondent to explain how much of this consolidated debt (mortgage on the duplex at 1715 Glenwood Avenue) was marital in nature versus non-marital.” Addendum 16-17

Response: That statement is patently untrue. The Appellant testified that his debts at the time of marriage totaled $5,519.45. T311, T312 The Respondent had no debts. Exhibit 118 #2 The parties’ indebtedness on April 15, 2011, totaled $329,922. T314 (Numbers have changed slightly to accommodate the judge’s figures.) Therefore, the marital debt was $324,000 (roughly $329,922 minus $5,519) T315 Spreadsheets showing those relationships were presented to the judge and accepted “for illustrative purposes” as Exhibits 301-303. T306 through T308 Appellant also explained at trial how the mortgage debt on 1715 Glenwood was accumulated. T433, T436-T437

Assets and liabilities in the marital estate were separately identified and valued in the trial-court judge’s order. However, no total was given for the amount of marital property to be divided. There were no percentages to indicate whether the property awards to the two parties were “just and equitable.” The two mortgages, together representing $257,000 of debt, were left undefined.
Conclusion: Whether a division of property is just and equitable depends upon the percentage of total property awarded to each party. Without a total, those percentages cannot be determined.

III. The court improperly changed the nature of debt in the two mortgages from marital to nonmarital.

The Issue: Does marital debt lose its marital character when it is secured by a mortgage on non-marital property, thus justifying its removal from the pool of marital property to be divided?
Standard of review: This a question of law. It requires an interpretation of the definitions of marital and nonmarital property under MSA § 518.003, Subd. 3b, which is reviewed de novo. The question is whether the law redefines the nature of debt (marital or nonmarital) if it is linked to a certain type of asset. “Misapplying the law is an abuse of discretion.” Bauerly v. Bauerly, 765 N.W.2nd 108, 110 (Minn. App. 2009)

Authorities: MSA § 518.003, Subd. 3b,

Antone v. Antone, 645 N.W.2d 96 (Minn. 2002) “Appellant contends that respondent withdrew his non-marital equity by refinancing the homestead. We reject the appellant’s argument that respondent withdrew his non-marital equity in the homestead by refinancing the homestead.”

While there was no explicit statement to that effect, the trial-court judge treated the two mortgages at 1702 Glenwood Avenue and 1715 Glenwood Avenue as if they had already been assigned and therefore could be excluded from the pool of marital debt. This was an abuse of discretion. Addendum 16 (debts), Addendum 32 ¶ 70, Addendum 28 ¶ 54, Addendum 32 ¶ 71, Addendum 42 ¶ 96
(a) With respect to the two mortgages excluded from marital debt, the judge reasoned that Respondent had agreed to “pay all encumbrances” against the non-marital four-plex at 1702 Glenwood Avenue under a signed agreement with Judge Ruth Washington. Addendum 12 &13, Addendum 28 ¶ 55

Response: Appellant did not agree unconditionally to assume the mortgage on 1702 Glenwood Avenue. When asked, he said he would do this only in the context of an overall property settlement that was fair. (Note that the agreement signed by the Appellant contains the statement: “The characterization of the debt is not determined.”) E300 Unfortunately, because the session with Judge Washington was considered a “settlement conference” (and therefore its proceedings could not be discussed at trial) , no transcript was kept of the proceedings. Appendix 147 Exhibit D In fact, this was not a “settlement conference” but an extension of the trial itself intended to save time by resolving certain issues to make a two-day trial possible.

(b) The judge reasoned that because the mortgage debt of $84,000 on 1702 Glenwood Avenue is secured by non-marital property valued at $160,000, it represents a “net gain” (of $76,000) to the Appellant if the judge awards both the marital debt and the non-marital asset to him. Addendum 16 (debts), Addendum 32 ¶ 70
Response: The judge is here mixing apples and oranges - marital and nonmarital property. Distribution of the two types of property is governed by two different statutes. This nonmarital asset, the real estate at 1702 Glenwood Avenue, was not the judge’s to award outside of statute. It already belonged to the Appellant. Being assigned the related debt therefore did not represent a “net gain”.

(c) The judge reasoned that the Appellant “chose to impose” a $173,000 debt consolidation loan “on the lone Glenwood property that is marital in nature”, presumably to avoid having debt that was previously marital changed to non-marital. The judge therefore treated the marital asset at 1715 Glenwood as non-marital property and removed the related mortgage from the pool of marital debt. Addendum 16 (debts), Addendum 28 ¶ 54, Addendum 32 ¶ 71, Addendum 42 ¶ 96

Response: The judge is here suggesting that the Appellant intentionally decided to apply the consolidation loan against marital real estate because this would preclude changing the debt from marital to nonmarital property in divorce proceedings. This theory overlooks the fact that the decision was made in 2007 - four years before the divorce - and it was the Respondent who filed for divorce. It is clearly unreasonable. More importantly, marital debt remains marital debt whether or not it is secured by nonmarital property.

(d) The judge reasoned that the Appellant failed to explain why the mortgage debt at 1715 Glenwood Avenue was marital. Addendum 16 (debts), Addendum 32 ¶ 71
Response: A full explanation was indeed given at trial. T436 - T437 See also Issue 2(a) above.

Conclusion: Marital and non-marital property are defined in Minnesota Statute § 518.003, Subd. 3b. There is no reference in this statute or elsewhere to the character of debt being changed when it is consolidated with other debt in a mortgage against certain assets.

IV. The court penalized the Appellant for “depreciating” assets far more than the dollars warranted.

The Issue: Did the judge properly use $89,000 in “depreciated” assets to justify assigning $313,760 more in marital debt to the Petitioner than to the Respondent?
Standard of review: It is a question of law, reviewed de novo, whether the trial-court judge fairly interpreted the law in dividing marital debt so disproportionately given his finding that the Appellant “depreciated” $89,000 of marital assets. “A district court abuses its discretion when it makes findings unsupported by the evidence or when it improperly applies the law.” Hemmingsen v. Hemmingsen, 767 N.W.2nd 711, 716 (Minn. App. 2009)

Authorities: Minn. Statute § 518.58, Subd. 1, Minn. Statute § 518.58, Subd. 1a, Luoma v. Luoma C3-01-704 (September 18, 2001), 2001, W L 1085094 (Minn. App. 2001)

The trial-court judge originally found that the Appellant had “dissipated” marital assets. After reviewing the post-trial motions, however, he realized that statute 518.58 Subd. 1a would not support that claim. Therefore, he decided to accomplish the same purpose through the less rigorous claim of depreciation under 518.58. However, “depreciation”, like “dissipation”, must contain an element of intent to conceal or diminish assets; and the facts do not support that finding. See Addendum 35 ¶ 78, Addendum 37 ¶ 83.

(a) In defense of awarding Appellant a smaller part of the marital property, the judge reasoned that the Appellant gave a third party money as a loan or gift, thus reducing the marital estate, and “there has been no legitimate attempt to collect them. Addendum 14, Addendum 35 ¶ 78, Addendum 37 ¶ 82

Response: The sole evidence of such transfers of money is given in Respondent’s Exhibit #19 (E19) which also states: “Of this (the $89,000), $33,000 represents unauthorized or fraudulent charges. I have made claim for between $5,000 and $10,000 of these charges and been granted credits.” Therefore, it is untrue that the $33,000 represents “loans” or “gifts” since the transfers were unintentional. It is also untrue that no legitimate attempts were made to collect that money. As indicated, some money was recovered.

With respect to the remaining $56,000 ($89,000 - $33,000), testimony given at trial as well as in the email indicate that the Appellant did not press to collect the money immediately because this would have ruined any chance to recover it in the long term. E19. The Appellant was upholding his duty to conserve marital assets. T80, T367

(b) The judge reasoned that the Appellant also allowed a third party to stay in one of his rental units without paying significant rent. Addendum 14, Addendum 34 ¶ 78
Response: It sometimes happens that tenants promise to pay rent but later fail to do so. Appellant asked Joyce Johnson to leave in July, 2011, and she did.

(c) Citing MSA § 518.58, Subd. 1, the court reasoned that marital property award should consider “the contribution of each in the acquisition, preservation, and depreciation of the marital estate”. In this case, the judge assigned a larger share of the marital debt to the Appellant because he had depreciated the estate through unrepaid loans or gifts to a third party. Addendum 13, Addendum 17, Addendum 33 ¶ 75 Luoma v. Luoma is cited in Addendum 14 as authorizing this approach.

Response: In Luoma v. Luoma, the court ruled that it was reasonable to assign greater debt to the husband because “while wife had continued working and was preserving the marital assets, husband had quit working.” In this case, Appellant managed his rental-property business throughout the marriage while Respondent quit work in 2006. The cases are dissimilar.

The judge considered the Appellant’s role in depreciating the marital estate but not in acquiring or preserving it. The term “contribution of each” implies “the extent to which” each party caused the depreciation. In this case, it is alleged that Appellant depreciated $89,000 in marital property. If so, the proportionate reduction in Appellant’s share of the marital property should have been $89,000 rather than that plus another $112,380. (See remedy for dissipated assets in statute 518.58, Subd. 1a.) When the Appellant in the interest of fairness suggested removing the “dissipated assets” from the pool of marital property, the judge abruptly ended the trial. T445

General Comment: The idea of Appellant’s having dissipated or “depreciated” assets looms large in the judge’s reasoning in distributing both marital and nonmarital asset in a manner heavily skewed against the Appellant. Considering that the Respondent repeatedly and obtrusively accused the Appellant of marital misconduct, it is likely that this message (and Appellant’s arrests for domestic abuse) affected the judge’s attitude toward him and caused the judge to disregard the statutory requirement that marital misconduct not be a consideration in distributing property. In this and other respects, the judge showed bias. MSA § 518.58, Subd. 1, MSA § 518.58, Subd. 2, Addendum 13-15, Addendum 33-38 ¶ 74-84, T394

V. The judge awarded shares of Qwest stock no longer owned.

The Issue: Did the judge properly award shares of stock in Qwest which the parties had sold nine Years before the trial?

Standard of review: This is an erroneous finding of fact.

Authorities: Minn. statute 518.58, Subd. 1

The judge could find no record of this stock having been sold. Addendum 43 ¶ 98 Such evidence is included in Exhibit 24A, Request No. 4.

B Issues related to the award of spousal maintenance

VI. The judge used faulty or incomplete numbers in calculating the parties’ income shortfall to justify spousal maintenance.

The Issue: To determine the amount of spousal maintenance, did the trial-court judge fairly calculate the income shortfall of the two parties from evidence presented at trial?
Standard of review: This a question of evidence. The court’s decision was based upon an erroneous findings of fact. Some alleged facts used in the calculation contradicted evidence presented at trial while other facts were simply assumed. There is also a question of law whether the “splitting the hardship” doctrine advanced in Seidl v. Seidl allows a trial-court judge to award maintenance despite the Appellant’s inability to pay. “Findings of fact are clearly erroneous if the court is left with the definite and firm conviction that a mistake has been made.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Min. 2008) Authorities: Minn. Statute § 518.552, Minn. Statute § 518.58, Subd. 1a, Seidl v. Seidl, 1998 WL 8480 (Minn. App. 1998)

(a) The trial-court judge reasoned that case law in Seidl v. Seidl, 1998 WL 8480 (Minn. App. 1998) authorized him to award Respondent $500 per month in permanent spousal maintenance and thereby override the requirements of Minnesota statute 518.552, Subd. 2(g). Addendum 30 footnote 3

(b) The judge found that Appellant had monthly expenses of $2,070 (Exhibit 24A) and Respondent had net monthly expenses of $1,000. He also assumed that the Respondent had no monthly income and the Appellant had $2,070 monthly income. (See Statement of Facts, B, first paragraph.) This gave Respondent a $1,000 monthly income shortfall, and the Appellant no shortfall. Splitting the difference 50-50 required the Appellant to pay Respondent $500 per month.

The judge reasoned that the Respondent claimed she needs $1,000 per month for living expenses excluding housing and utilities. Addendum 29 ¶ 62, Addendum 30 ¶ 63, Addendum 31 ¶ 66 & Addendum 31 ¶ 67 There was much evidence that both parties lived quite frugally. Respondent testified that she was a thrifty shopper and “as an individual, I would spend less than $50 per month.” T96 She had no child-care responsibilities. Appendix 3, finding of fact #8

The judge reasoned that a needs budget included in Appellant’s prehearing statement and presented in Respondent’s Exhibit 24A indicated that Appellant requires $2,070 for monthly living expenses. Addendum 30 ¶ 64

Response: The Appellant’s needs budget includes only $150 per month in interest expense. That is because, in his initial estimate of personal living expenses, Appellant did not realize he could be assigned all the marital debt and have to pay the related interest. Appellant testified at trial that this interest expense exceeded what he received in retirement income. E384 In that case, one would have to add another $1,850 ($2,000 - $150) to Appellant’s monthly living expenses bringing the total expenses up to $3,920.

Some of the $2,000 in monthly income expense is related to the Appellant’s rental-property business and is therefore included in expenses on Schedule E of the tax return. In his post-trial motions, the Appellant backed business-related interest totaling $1,255 out of the total interest leaving $807 in personal interest expense. Using that figure, the Appellant’s total monthly expenses would be $2,727. E14 through E18 (income tax returns)

(c) No monthly income amounts were given by the judge for either party although they may be inferred from other testimony or evidence presented at trial.
Response: The Respondent’s reported income ranges from $780 per month in a schedule presented to the court in September 2012 (Appendix 81) to $400 per month (E5) to between $280 and $300 per month in retirement income from China (E118 #29). The judge, however, calculated the Respondent’s monthly income shortfall of $1,000 on the basis of her having no income whatsoever. Addendum 31 ¶ 68 (implied)

The Appellant has monthly retirement income from a state pension and Social Security of roughly $2,000 per month. An analysis of the parties’ federal income-tax returns for the Years between 2006 and 2010 show an average loss from the rental-property business of $9,287 per year or $774 per month. Interest and dividend income, once significant, dwindled to $161 per month as the Appellant sold most of his stock holdings. E14 through E18 Putting those numbers together gives the Appellant a monthly income of $1,387.

Conclusion: By the above calculations, the Respondent would have a monthly income shortfall of $600 ($1,000 - $400). The Appellant would have an income shortfall of $1,340 per month ($2,727 - $1,387). To equalize the “hardship” using these improved numbers, the judge would have had to require the Respondent to pay the Appellant $370 per month so that both would have an income shortfall of $970. Instead, the judge required the Appellant to pay the Respondent $500 per month in permanent spousal maintenance. This order goes against the facts of the case and is unreasonable.

VII. The court had insufficient evidence to conclude that the Respondent would lack future employment opportunities or property or be left destitute unless she received spousal maintenance.

The Issue: Was there sufficient evidence in the trial record to justify the judge’s finding that the Respondent would have inadequate income, and even be “destitute”, if she did not receive spousal maintenance?

Standard of review: This a question of evidence. The question is whether there was insufficient evidence to justify the findings. When the judge never heard the Respondent speaking English, the conclusion that she does not speak English “even to a moderate degree” lacks a reasonable foundation. Although there was testimony that the Respondent has had cancer, the question was not considered whether this condition would affect her future ability to acquire income from employment. That conclusion was simply assumed. “An abuse of discretion occurs when the district court resolves the matter in a manner that is ‘against logic and the facts on record.’” O’Donnell v. O’Donnell, 678 N.W.2nd 47, 474 (Minn. App. 2004)

Authorities: Minn. Statute § 518.552

Hanson v. Hanson, 378 N.W.2d 28 (Minn.App. 1985)

Dick v. Dick, 438 N.W.2d 436 (Minn. App. 1989) “Permanent maintenance award, which did not include findings on reasonableness of wife’s expenses taking into account standard of living couple enjoyed together, and contained no findings on wife’s prospects for better employment with or without additional training, was invalid. M.S.A. § 518.58”

The judge issued findings on the Respondent’s English-speaking ability, health, work history, and employment prospects which lack a foundation in evidence. In fact, evidence in the record but not discussed at the trial contradicts certain conclusions to which the judge jumped. (See Statement of Facts, A. “employability”.)

(a) The judge found that the Respondent could not speak English “even to a moderate degree”. Although the judge never heard the Respondent speak English, he inferred that she did not know this language well because, if she did, she would occasionally have jumped in to answer questions in English despite having a Chinese-language translator. Addendum 28-29 ¶ 60

Response: If the judge never heard the Respondent speak English, he could not have an informed opinion of her English-speaking ability. Evidence based upon a personal observation of the courtroom habits of other persons aided by translators is quite lame.

There is another explanation why the Respondent never spoke English in the judge’s presence. She is too intelligent and disciplined a person to “blow her cover” with respect to the use of translators who aided her immensely. Besides being accessories to “courtroom theater” designed to impress upon the judge a client’s lack of English-language skills, the Chinese translators were employed to strategic advantage during the trial in several ways.

First, the need for translations of questions from an English speaker to a Chinese client and translations of the client’s answer back into English multiplies the time required to do cross-examination and therefore can be a mechanism for “running out the clock” on the other party’s time for testimony.

Second, a Chinese-speaking client could offer testimony at great length in Chinese which neither the judge nor the other party could understand having little to do with the question. This technique also served to “run out the clock.” The judge himself cited this problem in E153-154 .

Third and most ominously, the use of two translators allowed one translator to pass written notes to the other that seemed to suggest answers to questions being asked. The judge commented on the note-passing by the translators. T381

Conclusion: In the absence of evidence to the contrary, it makes little sense that an intelligent Chinese woman who came to the United States ten years earlier in her forties and lived with a non-Chinese-speaking husband would not have acquired English-language skills, “even to a moderate degree”. It makes little sense that Respondent could work on the floor of the downtown Target store in Minneapolis for three and a half Years and speak little English unless Target supplied translators for its sales force. T226 Exhibit 374 shows that Respondent was no marginal performer at Target but “employee of the month” in October 2005. E374 The judge’s finding that Respondent speaks little English is without foundation or reason.

(b) The judge found that the Respondent has been treated for recurrent cancer including chemotherapy and has taken regular insulin injections. She often travels to China for medical treatment. Addendum 29 ¶ 60

Response: Both the Respondent and her daughter did testify at trial (and the Appellant confirms) that Respondent had an operation for breast cancer in China in 2009 that included chemotherapy, that cancerous cells were also found and removed in the intestines and lungs, and that Respondent took insulin for diabetes. No testimony was given, however, that the Respondent had active cancer cells at the time of trial or that the cancer was likely to recur. There was no testimony or evidence linking the Respondent’s health problems to inability to hold a paying job.

(c) The judge found that the Respondent worked at Target “for a short time”, she has “limited” work history, and there is no indication that she could earn a good salary or acquire significant capital assets if her health suddenly improved. Addendum 29 ¶ 61, Addendum 44 ¶ 102

Response: The term “for a short time” does not fairly characterize Respondent’s period of work. She worked at Target for three and a half years, long enough to accumulate $5,000 in a 401(k). E118 #4 Likewise, the term “limited work history” is misleading since there is nothing in the record relating to Respondent’s career in China, both with respect to term of employment and position. The Respondent refused to answer Appellant‘s question about her Chinese employment in Exhibit 118 # 3, arguing that the question was irrelevant. Also, the Target employment was not insignificant.
It is true that “there is no indication that she (Respondent) could earn a good salary or acquire significant capital assets if her health suddenly improved.” It is equally true there is no indication that she could not earn a good salary or acquire significant capital assets if her health suddenly improved. There is no evidence relating to this question.

(d) The judge found that the Respondent might well become “near destitute” if she cannot tap into the Appellant’s non-marital assets. Addendum 45 ¶ 102
Response: This is a label masquerading as a finding. Its substance, if any, has to do with previously addressed questions relating to the Respondent’s language skills, state of health, and prospective employability. In practical terms, however, the prospect of the Respondent’s becoming destitute also depends upon whether she has other economic resources besides employment at her disposal. Property ownership would be one such resource. Her eligibility to receive government benefits if disabled would be another resource. In all reality, however, her greatest resource would be her now 30-Year-old daughter, Violet, with whom she lives in the Northern Virginia condo.

While in theory Respondent could not rely on the continued help and favor of her daughter, they are, in fact, an economic unit. They share a saving/checking account at Wells Fargo to which the daughter alone makes deposits and the Respondent makes withdrawals. T110, E4 The Respondent may also have unlimited access to the daughter’s credit card. The Respondent or her attorney refused to answer a question about this in Exhibit 118 # 27. When the same question was asked at trial, the judge sustained an objection. T153

Respondent’s answer to an interrogatory question (E118 #5) revealed that she “owed” her daughter “$12,000 for attorney’s fees and court costs in addition to rent. Those facts would suggest that the daughter has a robust income, being able both to “lend” or give her mother $12,000 for the divorce trial and also make payments on a $320,000 condo.

There is also the question whether, if Respondent is truly destitute, she might be eligible for government assistance. In Hanson v. Hanson, a Chinese-immigrant wife was awarded maintenance, in part, because “she is ineligible for federal public assistance programs because of the affidavit of support appellant filed.” The Respondent is not ineligible for that reason.

Regarding Respondent’s own property ownership, she testified that she received $100,000 from the sale of an apartment in Beijing in October 2010 and transferred $90,000 of the proceeds to Violet’s account in the United States. T241, T246, E1, E2, E3 That leaves $10,000 which Respondent may still have but has failed to disclose, in addition to her $5,000 401(k).

There is a reasonable inference of undisclosed assets in that the Respondent reported no financial assets at the time of marriage when asked about this in Exhibit 118, #3. Yet, in Exhibit 118, #16 Respondent disclosed that she bought her “big apartment” in 1996 paying 300,000 renminbi. Did she, a conspicuously thrifty person, save nothing from her employment in the subsequent four years?
See also Statement of the Facts, B. (last two paragraphs) Respondent’s situation fits few of the legal criteria justifying spousal maintenance.

VIII. If Respondent has property worth $200,000, she ought not receive spousal maintenance on the grounds of lacking sufficient property to meet her needs.

The Issue: Does the Respondent’s continued ownership of unencumbered non-marital property in China worth $200,000 overcome the trial-court judge’s award of permanent spousal maintenance to her on the grounds that she lacked “sufficient property .. to provide for (her) reasonable needs” as required under Minnesota Statute § 518.552, Subd. 1(a)?

Standard of review: This is a question of law to be reviewed de novo. The question is whether the law can be fairly interpreted to support a finding of insufficient property when the Respondent retains an asset worth $200,000 that could be sold. If not, the court is abusing its discretion. Hemmingsen v. Hemmingsen, 767 N.W.2nd 711, 716 (Minn. App. 2009)

Authorities: Minn. Statute § 518.552
Response: If Respondent lives with her daughter in northern Virginia, it would seem that she could escape destitution by selling her non-marital condo in Beijing and living off the proceeds. How can a judge order maintenance for a person who owns so much property on the grounds that she lacks “ sufficient property .. to provide for (her) reasonable needs” under Minn,. statute 518.552, Subd. 1(a)?

A $200,000 condo unneeded for living is “sufficient property”.

IX. Respondent’s gift of $90,000 to her daughter five months before filing for divorce represents a transfer of property in anticipation of divorce.

The Issue: Did Respondent’s gift of $90,000 to her daughter from the sale of an apartment in Beijing five months before she filed for divorce constitute a transfer of property in anticipation of divorce?
Standard of review: This is a question of law, reviewed de novo, related to the awards of spousal maintenance and the Appellant’s nonmarital property. It undermines justice to allow a party to transfer significant property shortly before filing for divorce and then be declared destitute. “Application of a statute to the undisputed facts of the case involves a question of law, and the district court’s decision is not binding on this court.” Davies v. W. Publ’g Co., 622 N.W.2d 836, 841 (Minn. App. 2001)

Authorities: Minn,. statute 518.552, Subd. 1(a), Minn. statute 518.58, Subd.1a

Moore v. Moore, 391 N.W.2d 42 (Minn.App. 1986) “A party to a marriage subject to severance in divorce proceedings cannot be permitted to subvert the orderly processes of the courts by concealing, dissipating, or misusing his assets in anticipation of divorce so as to reduce the property available for division or as a standard for the court in fixing payments for alimony or support.”

(a) The judge did not consider that possibility even though he made a similar assumption in suggesting that in 2007 Appellant “chose” to put a mortgage on the parties’ “sole marital property”, presumably to keep the debt marital in case of divorce. Addendum 16 (debts), Addendum 28 ¶ 54, Addendum 32 ¶ 71

Response: The Respondent filed for divorce on March 8, 2011. Without her husband’s prior knowledge, she sold an apartment in Beijing for $100,000 in October 2010 - five months earlier - and gave $90,000 of the proceeds to her daughter. This money, which might have disqualified her for a destitution claim, is legally in someone else’s hands. That person, the Respondent’s daughter, later contributed $12,000 to help finance Respondent’s divorce proceedings. E118 #5

Minnesota statute 518.58, Subd. 1a includes a concept of transferring property in contemplation of divorce. While the Beijing apartment was the Respondent’s nonmarital property, she used the transfer to strategic advantage in the divorce proceeding by reducing her property holdings so that she would be a “strong candidate for permanent spousal maintenance”. (Addendum 29 ¶ 61)

X. The trial court overlooked the Appellant’s needs and lack of resources in awarding permanent spousal maintenance to Respondent.

The Issue: Does case law allowing a trial court to award spousal maintenance beyond the obligor's ability to pay overcome the statutory requirement under Minnesota Statute § 518.552, Subd. 2(g) that the award should take into consideration “the ability of the spouse from whom maintenance is sought to meet needs”?

Standard of review: This is a question of law. The trial court cited unreported cases to justify an award of permanent spousal-maintenance despite an admission that “husband does not generate enough current income to meet his needs and pay a significant amount of maintenance.” Whether such reasoning permits violation of the statutory provision is a question of law that the appellate court would review de novo. “Application of a statute to the undisputed facts of the case involves a question of law, and the district court’s decision is not binding on this court.” Davies v. W. Publ’g Co., 622 N.W.2d 836, 841 (Minn. App. 2001)

Authorities: Minn. statute § 518.552, Subd. 2(g), Seidl v. Seidl, 1998 WL 8480, (Minn. App. 1998)
Dahlberg v. Dahlberg, 358 N.W.2d 76 (Minn. App. 1984) Rosenberg v. Rosenberg, 379 N.W.2d 580 (Minn. App. 1985) “An important consideration in determining whether a spouse should be awarded maintenance is the financial need of that spouse, balanced against the ability of the other spouse to provide maintenance.”

(a) The judge admitted that Appellant does not have sufficient income to meet his own needs and pay significant maintenance to Respondent. Addendum 30 ¶ 65
Response: The Appellant argued at some length after submitting his current bank statement (E384) that he was “destitute”; his monthly interest expense exceeded his retirement income by $175. He was also running out of credit. T370 Unlike Respondent, Appellant was reduced to self-representation. Addendum 38 ¶ 86

The judge indeed considered the other party’s ability to pay. He found that party unable to meet his own needs and pay significant maintenance but ordered maintenance anyhow. “If I require Respondent to pay $500 per month in maintenance, he will not be able to meet his full needs out of current income.” Addendum 31 ¶ 68 In this case, the conclusion of law did not fit the findings of fact. The judge abused his discretion in ignoring the law to order maintenance well beyond the Appellant’s income.

(b) The trial court cited Seidl v. Seidl as justification for its award of permanent spousal-maintenance. Addendum 30 footnote 3
Response: Seidl v. Seidl (also Parker v. Parker) was an unpublished opinion, not to be cited as a legal precedent. That court decision sought to modify spousal maintenance in light of the parties’ changed conditions to avoid an “unreasonable” outcome. This case would seem to contradict the statute requiring the court to consider the other party’s situation: “On remand the trial court must make showings that it balanced the overall circumstances of the parties in making its maintenance determination.” Seidl v. Seidl

(c) The judge reasoned that Appellant can always sell his nonmarital property in Milford, Pennsylvania, to provide cash for spousal maintenance. Addendum 31 ¶ 68

Response: The ability to sell nonmarital property is not income capacity. The judge himself wrote: “There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.” (Addendum 28 ¶ 59) Yet, in this spousal-maintenance award the judge is requiring the Appellant to do precisely that. Furthermore, he is naming the particular parcel of Appellant’s nonmarital property that is to be sold. (¶ 68)

(d) The judge stated that Appellant nets $9,000 a year from his apartment at 1708 Glenwood Avenue; this could be a steady source of cash to pay maintenance. Addendum 24 ¶ 23, Addendum 38 ¶ 84
Response: The judge is here “cherry-picking” one of the four properties in the Appellant’s rental-property business to suggest that the business as a whole is profitable and might therefore be a source of cash to pay spousal maintenance. The parties’ federal income-tax returns, Schedule E, ( E14 through E18), show that the other three properties were unprofitable. There was a reported loss averaging $9,287 per year for the four properties combined in the five years between 2006 and 2010. The judge himself admits: “On balance, the four real estate holdings yield little combined yearly income.” Addendum 24 ¶ 24 In fact, the income is negative.

There is a legal question whether a court can allow outlying case law to overcome statute, especially considering that the judge also made the Appellant assume more than $300,000 in marital debt and sell nonmarital real estate to pay the Respondent $50,000 in cash.

C Issues related to the invasion of the Appellant’s non-marital property

XI. The trial court invaded the Appellant’s nonmarital property without the required finding of unfair hardship.

The Issue: Did the trial court base its award of $50,000 of the Appellant’s non-marital property on specific findings of “unfair hardship” as required in Minnesota Statute § 518.58, Subd. 2?

Standard of review: This is a question of law that would be reviewed de novo. The issue here is whether the court gave adequate reasons to invade nonmarital property based on “unfair hardship”. If not, there was an abuse of discretion and the decision should be reversed. “We have said that we review equitable determinations for an abuse of discretion.” City of North Oaks v. Sarpal, 797 N.W.2nd 18, 23 (Minn. 2011) “Misapplying the law is an abuse of discretion.” Bauerly v. Bauerly, 765 N.W.2d 108. 110 (Minn. App. 2009)

Authorities: Minn,. statute § 518.58 Subd. 2 “The court may apportion up to one-half of the property otherwise excluded ... if it finds that either spouse’s resources or property ... are so inadequate as to work an unfair hardship... If the court apportions property other than marital property, it shall make findings in support of the apportionment. The findings shall be based on all relevant factors.” Wolter v. Wolter, 395 N.W.2d 417 (Minn. App. 1986) “Nonmarital property may be divided only upon a finding of ‘unfair hardship’ to a spouse. Minn.Stat. § 518.58 ... The court erred in awarding nonmarital assets to the respondent where there was no finding and no evidence of undue hardship.”

Graeber v. Graeber, 392 N.W.2d 589 (Minn.App. 1986) “The trial court’s award of one-half the appreciation in value of nonmarital property was error and represents invasion of nonmarital property without a finding of unfair hardship.”

Ward v. Ward, 453 N.W.2d 729 (Minn.App. 1990) ”If the court apportions nonmarital property, it must ... make a finding of unfair hardship ... failure to make required findings is a clear abuse of discretion ... A very severe disparity between the parties is required to sustain a finding of unfair hardship necessary to apportion non-marital property.” Award of nonmarital property was reversed.

Stageberg v. Stageberg, 695 N.W.2d 609 (Minn.App. 2005) “ A very severe disparity between the parties is required to sustain a finding of unfair hardship necessary to apportioning nonmarital property. Here neither the district court’s findings nor the record show the hardship required to apportion wife’s nonmarital assets to husband.”

(a) The judge’s summation arguments did not mention “unfair hardship” among the reasons for awarding Appellant’s nonmarital property. Addendum 38 ¶ 84, Addendum 46 ¶ 105

Comment: Minnesota Statute 518.58, Subd. 2 is clear on this point: A trial-court judge can award nonmarital property only if he finds that a party’s resources and property “are so inadequate as to work an unfair hardship” on that party. There must be a specific finding of unfair hardship.

The judge failed to provide arguments or evidence to support the idea that the Respondent might experience unfair hardship. The judge’s summation arguments did not even mention “unfair hardship” among the reasons for awarding Appellant’s nonmarital property. Instead, the arguments focused on such things as dissipated assets or properties that might be sold to raise the cash. Addendum 38 ¶ 84. Likewise, the summary of reasons offered to justify the award in Addendum 46 ¶ 105 did not mention unfair hardship. With respect to fairness, the invasion of Appellant’s nonmarital property comes on top of a permanent $500 monthly obligation for maintenance and his assumption of 98.2 percent of the $325,713 in marital debt.

(b) The judge reasoned that the statutory factors in 518.58 Subd. 2 indicate that the Respondent would suffer from “unfair hardship” after the divorce unless the nonmarital-property award were made, but the Appellant presumably would not. Addendum 44-45 ¶ 102

Response: Although the judge discussed several of the statutory factors in the context of invading nonmarital property, the key findings were not grounded in evidence presented at trial. (See Statement of Facts, A.) The judge also failed to explain why the findings in their totality favored an award to the Respondent rather than to the Appellant. Addendum 44 ¶ 102 The prospect of gaining future income would seem the main question. Does a 71-Year-old man with no outside work history in the past fifteen years stand a better chance of becoming gainfully employed than a 56-year-old woman who worked at Target for three and a half Years until 2006 but who has suffered from cancer and has limited English-speaking abilities? It is by no means clear that the Respondent is in the worse position here.

(c) The judge reasoned that Appellant’s nonmarital property could be invaded because “the marital pie would have been significantly larger sans the money frittered away by Respondent (Appellant) for nonmarital purposes.” Addendum 38 ¶ 84

Response: The alleged dissipation of marital assets is a consideration in the division of marital property. It is not a factor to justify invasion of a party’s nonmarital property. See Wolter v. Wolter. The court here rejected the argument that dissipation of marital assets was grounds for invading non-marital property.

(d) The judge reasoned that a trial-court judge has total discretion to award up to 50% of either party’s nonmarital property to the other party. Addendum 46 ¶ 104
Response: The invasion of nonmarital property is supposed to be rare. The Family Law Institute’s publication, “Family Law Basics: Property Division”, states on page 11: “Invasion of nonmarital property occurs only in extraordinary circumstances.” Both statute and case law support the idea that, absent findings of unfair hardship, trial courts may not invade nonmarital property.

CONCLUSION

A Issues related to the distribution of marital property

The division of marital property should be remanded to the trial court with instructions to order an equitable distribution according to statute. Alternatively, in the interest of justice per Minnesota Rules of Civil Appellate Procedure Rule 103.04, the court might order the marital property to be divided as stated in the trial-court order except that, in addition, Respondent would give Appellant an unsecured note for $100,000 which would be satisfied if $60,000 is paid within five years.

B Issues related to the award of spousal maintenance

The order of spousal maintenance should be reversed. Alternatively, in the interest of justice per Rule 103.04, the court might order the Appellant to pay spousal maintenance to Respondent of $500.00 per month for 18 months starting August 1, 2012.

C Issues related to the invasion of the Appellant’s non-marital property

The court should reverse the lower-court ruling. There should be no award of either party’s non-marital property.

dated: August 5, 2013 Respectfully submitted,

_________________________
Chester A. Mack, Jr.

1702 Glenwood Avenue
Minneapolis, MN 55405

374-XXXX

attorney pro se, Appellant

Certificate of Brief Compliance

This Certificate was prepared by Chester A. Mack, Jr., Appellant.
Pages ’08, version 3.0.3 from Apple is the software used to prepare this brief.
Helvetica 13 point, a proportional font, was used for this brief.
The word count per Pages, including all text from LEGAL ISSUES to this Certificate, is 13,894 words.

Signed: __________________________ Dated: __________________
Chester A. Mack, Jr.

 

INDEX TO ADDENDUM
PAGE NUMBER

ADDENDUM #1 Judge Stephen W. Jensen’s “Order, memorandum, amended finding of fact, conclusions of law, order for judgment, and judgment and decree, and memorandum” dated December 28, 2012 1-56

ADDENDUM #2 Minnesota Statute § 518.003 Definitions of marital and nonmarital property 57

ADDENDUM #3 Minnesota Statute § 518.58 Division of marital property. Also includes award of nonmarital property and transfer, encumbrance, concealment, or disposition of marital assets. 58-59

ADDENDUM #4 Minnesota Statute § 518.552 Maintenance 60-61

ADDENDUM #5 Exhibit A (Appellant’s non-trial exhibit) Marital assets and debts on April 15, 2011 and amounts and percentages awarded to the parties 62

INDEX TO APPENDIX
pages

Appendix #1 Judge Stephen W. Jensen’s trial order dated July 20, 2012 ......................................................................................................... 1-24

Appendix #2 Appellant’s “post-trial motions for amended findings of fact/ conclusions of law or, alternatively, a new trial” dated August 20, 2012 ... 25-73

Appendix #3 Appellant’s “post-trial motion for stay of execution” dated August 26, 2012 ........................................................................................ 74-78

Appendix #4 Respondent’s “Notice of motion and motion” dated September 6, 2012; “Affidavit of Rose Mack in support of petitioner’s motion” dated September 6, 2012; “Memorandum of law in support of petitioner’s motion” dated September 6, 2012 ............................................................................. 79-88

Appendix #5 Appellant’s “Respondent’s affidavit in response to petitioner’s motions regarding respondent’s post-trial motion for stay of execution” dated September 11, 2012 ............................................................................ 89-91

Appendix #6 Respondent’s “Affidavit of Rose Mack in support of petitioner’s motion” dated September 19, 2012 .......................................... 92

Appendix #7 Appellant’s “Respondent’s affidavit in response to petitioner’s affidavit in support of petitioner’s motion” dated September 21, 2012 . 93-94

Appendix #8 Judge Stephen W. Jensen’s “Order” dated September 24, 2012, with respondent to appellant’s motion for stay of execution ........ 95-96

Appendix #9 Respondent’s “Petitioner’s memorandum of law in support of her motion (raising new issues)” dated September 29, 2012; Respondent’s “notice of motion and motion” dated September 29, 2012 ................... 97-100

Appendix #10 Respondent’s “Petitioner’s memorandum of law in support of her motion” dated October 3, 2012; “Notice of motion and motion” dated October 4, 2012 .................................................................... 101-115

Appendix #11 Appellant’s “Respondent’s affidavit in response to petitioner’s memorandum of law in support of her motion”, dated October 5, 2012 116-117

Appendix #12 Appellant’s “Notice of Appeal to the Minnesota Court of Appeals” dated February 20, 2013 .......................................................... 118

Appendix #13 Appellant’s “Statement of the Case” dated February 20, 2013 ....................................................................................................... 119-128

Appendix #14 Respondent’s Statement Clarifying Appellant’s Statement of the Case dated March 5, 2013 ............................................................ 129-132

Appendix #15 Minnesota Court of Appeals order to attend mediation dated February 22, 2013 ........................................................................ 133-134

Appendix #16 Minnesota Court of Appeals order vacating order to attend mediation dated April 26, 2013 ............................................................... 135-136

Appendix #17 Appellant’s motion dated July 29, 2013 for an enlarged brief .................................................................................................. 137-138

Appendix #18 Order of Appellate court dated August 2, 2013 denying the motion for an enlarged brief ............................................................... 139-140

Appendix #19 Exhibit B (Appellant’s non-trial exhibit) Appellant’s letter written to referee Alice Raleigh on October 21, 2011 141-143

Appendix #20 Exhibit C (Appellant’s non-trial exhibit) Supplemental affidavit for proceeding In Forma Pauperis with respect to transcript 144-146

Appendix #21 Exhibit D (Appellant’s non-trial exhibit) Email dated May 3, 2013 from court reporter Marcia Kladek confirming lack of transcript 147

 

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(43) Respondent’s Reply Brief for Court of Appeals (September 9, 2013) See divorcebook.html, chapter 62.

TABLE OF CONTENTS

Page

Table of Authorities ii

Statement of the Facts
1
Argument 8

I. Standard of Review 8

The Trial Court Did Not Err or Abuse its Discretion in the Unequal Division of Marital Assets and Liabilities 9

The Trial Court Did Not Err or Abuse its Discretion in Awarding Permanent Spousal Maintenance to Respondent 17

IV. The Trial Court Did Not Err or Abuse its Discretion in Awarding $50,000 from the Appellant’s Non-Marital Properties 21

Conclusion 25

Certificate of Brief Compliance 26

Index to Addendum 27

 

TABLE OF AUTHORITIES

Cases

Published Opinions

Antone v. Antone, 645 N.W.2d 96 (Minn. 2002) 8
Arundel v. Arundel, 281 N.W.2d 663 (Minn. 1979) 19
Bollenbach v. Bollenbach, 175 N.W.2d 148 (Minn. 1970) 8
Castonguay v. Castonguay, 306 N.W.2d 143 (Minn. 1981) 8
Dahlberg v. Dahlberg, 358 N.W.2d 76 (Minn. App. 1984) 9, 12
Erickson v. Erickson, 434 N.W.2d 284 (Minn. App. 1989) 8
Erlandson v,. Erlandson, 318 N.W.2d 36 (Minn. 1982) 17
Fabio v. Bellomo, 489 N.W.2d 241 (Minn. App. 1992)
aff’d 504 N.W.2d 758 (Minn. 1993) 20
Filkins v. Filkins, 347 N.W.2d 526 (Minn.App. 1981) 14
Frederiksen v. Frederiksen, 368 N.W.2d 769 (Minn.App. 1985) 21
General v. General, 409 N.W.2d 511 (Minn. 1987) 11
Hanson v. Hanson, 378 N.W.2d 28 (Minn.App. 1985) 21, 24
in re Salkin, 430 N.W.2d 13 (Minn. App. 1988) rev, denied (Minn. 1988) 21
Johns v. Johns, 354 N.W.2d 564 (Minn.App. 1984) 11, 15
Johnson v. Johnson, 277 N.W.2d 208 (Minn. 1979) 16
Justis v. Justis, 384 N.W.2d 885 (Minn. App. 1986) 9, 12, 19
Karon v. Karon, 435 N.W.2d 501 (Minn. 1989) 12
Kreidler v. Kreidler, 348 N.W.2d 780 (Minn. App.1984) 9
Krick v. Krick, 349 N.W.2d 350 (Minn. App.1984) 18
Lynch v. Lynch, 411 N.W.2d 263, 265 (Minn. App. 1987) 12
Maranda v. Maranda, 449 N.W.2d 158 (Minn. App. 1989) 22
Novick v. Novick, 366 N.W.2d 330 (Minn. App. 1985) 18
Reynolds v. Reynolds, 498 N.W.2d 266 (Minn. App. 1993) 22
Roel v. Roel, 406 N.W.2d 619 (Minn. App.1987) 22
Ruzic v. Ruzic, 281 N.W.2d 502 (Minn. 1979) 11
Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1988) 15
Senglaub v. Senglaub, 302 Minn. 547, 224 N.W.2d 514 (1974) 8
Servin v. Servin, 345 N.W.2d 754 (Minn. 1984) 8, 15
Stich v. Stich, 435 N.W.2d 52 (Minn. 1989) 17
Vangsness v. Vangsness, 607 N.W.2d 468 (Minn. App. 2000) 8, 15
Ward v. Ward, 453 N.W.2d 729 (Minn. App. 1990) 21
Wibbens v. Wibbens, 379 N.W.2d 225 (Minn. App. 1985) 16

Unpublished Opinion

Parker v. Parker, C)-970332, (Minn. App. 1997) 19
1997 WL 658938

Statutes

Minn. Stat. Sec. 518.003, subd. 3b 9
Minn. Stat. Sec. 518.58 9, 13, 21
Minn. Stat. Sec. 518. 552 17

Statement of the Facts

The parties were married on January 28, 2000. (A. Adm. 2) Respondent is a Chinese immigrant who came to the United States in July 2001 to live with the Appellant. (A. Brf. 10) The parties were separated in February 2011 and Respondent commenced divorce proceedings in March 2013. (A.Adm. 2) Their marriage was dissolved on July 20, 2012. (A. Apdx, 1-24) Appellant moved for amended findings and other relief, seeking to limit the Respondent’s permanent spousal maintenance to six months; requesting the marital debt be equally divided; and challenges the award of $50,000 to Respondent. (A. Apx. 25-73)

In its order of December 28, 2012, the district court denied Appellant’s requests to make wholesale changes to the division of marital debt, and the award of spousal maintenance and $50,000 to Respondent. (A. Adm. 1-2) However, the court did agree to make other modifications and clarifications which are incorporated in its amended judgment and decree on December 28, 2012. (A. Adm. 1956)

Respondent was 56 Years old (born on April 5, 1956) at the commencement of these proceedings and husband was 70 (born on February 21, 1941). (A. Adm. 19-20) During their marriage, Appellant handled most of the parties’ financial matters, including payment of household expenses, collecting rental payments and securing multiple bank loans. (T. 19, 90, 97-100, 108, 402, 432, 436). Appellant worked in accounting before he retired and prepared and filed the parties’ tax returns during their marriage. (T. 401; Ex. 24A, #11)

I. The Parties’ Non-marital Properties

Respondent was awarded her non-marital condominium in Beijing China pursuant to the parties’ partial settlement agreement. (R. Adm. 1, A. Adm. 22, 48) The court found the value of this property to be $200,000. (A Adm. 39; Ex. 118 #14)

Respondent owned or co-owned another piece of non-marital real property in China which was sold in or around October 2010, the proceeds of which was about $100,000. (A. Adm. 31, T. 241-246) The entire amount was given to Respondent’s adult daughter, Violet Mack (“Violet”), for the purchase, improvement, and furnishing of a townhouse in Virginia. (T. 243-244)

The court awarded Appellant, pursuant to the parties’ stipulation, his non-marital real properties at 1708 Glenwood Minneapolis (“nine unit”) which is an apartment building with a stipulated valued of $280,000; and 1702 Glenwood Minneapolis (“fourplex”) which is a four-plex with a value of $160,000. (Adm. p. 21, 49; Ex. 20, R. Adm. 1) The court assigned all encumbrances on these two properties to the Appellant pursuant to the parties’ partial stipulation. (A. Adm. 49, R. Adm. 1) The court found the encumbrance on the four-plex to be $84,017.51; and there was no encumbrance against the nine-unit. (A. Adm. 11, 21, T.63)

The court also awarded Appellant his non-marital properties at 100 Sawkill Milford Pennsylvania (“Milford”) which he received by inheritance and stipulated to have a value of $280,000. (A. Adm. 22, 49, R. Adm. 1); and the Port Wing Wisconsin property with a value of $20,000. (A.Adm. 22, 49, Exh. 24). None of these properties are encumbered. (A. Adm. 22).

The four-plex, nine-unit, and Milford have been used as rental properties in varying capacities. Milford has been a financial burden on the marital resources because it brings in less than $5,000 pert Year of rental income, with taxes and utilities exceeding the rentals by more than twice that amount (footnote 1), without considering other ownership expenses. (A. Adm. 23, Ex. 14-18)

The four-plex produced net income only once between years 2006 to 2010, with a profit of $2,600 in 2009. (A. Adm. 23, Ex. 14-18) It produced a loss of about $2,000 in the Year 2010, even after backing out depreciation. (Id.) The parties lives in one of the units during their marriage. (A. Adm. 23) As for the nine-unit, its averaged $9,0000 in net income annually, and with depreciation added back, about $13,000. (Id.)

The parties also agreed that Appellant be awarded his 3 Wunderlix Celluloid Prints. (Ex. 300, A. Adm. 48)

[ Footnote 1 The parties’ 2006 tax return shows Milford’s rental income was $4,530, with taxes and utilities totaling $12,557; 2007 return shows $4,500 and $10,976 respectively; 2008 return shows $4,780 and $10,210 respectively; 2009 return shows $4,620 and $10,483 respectively; 2010 return shows $4,820 and $10,256 respectively.]

The Parties Marital Properties

The parties stipulated their marital real properties at 1715 Glenwood Minneapolis (“duplex”) and adjacent lots at 1719 Glenwood together have a value of $110,000, and there is an encumbrance of $173,000 on the duplex. (R. Adm. 1, A. Adm. 21-22) The duplex serves as rental property, and between years 2006-2010, it alternated between making and losing money, with two profitable years in 2007 and 2008.

The parties also owned various marital securities, most of which the court found to have been sold in recent Years or no longer have any equity. (A. Adm. 43, Ex. 14-18, Ex. 24A, #19) Because no sale document was provided for the Quest (now Century Link) stock, the court assumed the parties still held this position. (A. Adm. p. 43) Overall, the court court determined there were very little marital securities from which to divide. (Id.)

Respondent was awarded her 401(k) account with an agreed value of $5,000. (A. Adm. 25, R. Adm. 1)

The Parties Income and Expenses

Besides the approximate $9,000 of rental income from the nine unit, Appellant receives a combined monthly retirement income of about $2,000 from social security and pension. (A. Adm. 30, T. 432, Ex. 24A)

The court reviewed Appellant’s dividend income reported on his recent tax returns and found they are a fraction of what they used to be, with many of them already sold. (A. Adm. 24-25, Ex. 14-18) Appellant stated the combined value of his non-marital stocks in Wells Fargo, Gannett, Arbitron, and US Bank in March 2012 was $15,000 to $20,000. (A. Adm. 26, Ex. 24) The court also found Appellant did not comply with the required accounting of his property transfers ordered by the court. (A. Adm. 26) However, Appellant’s trial exhibit illustrated that his total non-marital stock holding was about $70,000. (A. Adm. 26, Ex. 302) footnote 2 [Footnote 2 Appellant provided this number as the combined value of Gannett, Arbitron, US Bank, Target, Europ. Equity, PG&E, Xcel, Wells Fargo]

Respondent’s sole source of income is a small retirement income of about $300 from China. (A. Adm. 29 T. 103) Appellant provided financial support for the Respondent throughout their 11-Year marriage. (T. 432 438) Respondent had only one job during her marriage to Appellant. She worked at Target for a couple of years until a work injury in 2006. (T. 226, 256-257)

Although Respondent requested $2,000 in monthly living expenses, $1,000 of which was attributed to rent. (A. Adm. 31) Because Respondent had been living with Violet without having to pay rent, the court treated the gift of $100,000 to Violet toward the townhome, as adequate consideration for Respondent’s rent-free living arrangement with Violet (A. Adm. 31), and therefore considered her monthly need to be $1,000. (Id.)

The court found that the parties had various bank accounts with nominal value. (A. Adm. 26-27)

IV The Parties’ Marital Debt

When they married in 2000, Respondent had no debt and Appellant testified he had a debt of about $5,000. (T. 437) The court found the parties have the following unsecured marital debts:

Creditor Amount Cite
Advanta $2,630 A. Adm. 27, T.9
City Business 3 $12,001.85 A. Adm. 27, T.9-10, Ex. 116, 132
Menard’s $1,893.52 A. Adm. 27, T.25-26, Ex. 133
F.B. Omaha $8,356.40 A. Adm. 27, Ex. 200
Chase $3,278 A. Adm. 27, Ex. 387
US Bank $39, 628.01 A. Adm. 27, T28-29, Ex. 202
US Bank $5,976.67 A. Adm. 27, T28-29, Ex. 201
Respondent’s medical bills in China $6,000 A. Adm. 27, Ex. 300

Total $79,764.45

[Footnote 3 This is for account ending in 7415 which had 4 sub-accounts at one time. The parties disputed the total remaining balance at trial. (T. 9-11) Appellant claimed 2 sub-accounts were closed due to unauthorized charges by Ms. Johnson and others, and of the remaining 2 sub-accounts, he used one (#5466) and Respondent used one (#2673). (T. 15-17]

As for secured debts, Appellant has an encumbrance on the four-plex (his non-marital property) which he refinanced in or around 2010, with a current remaining balance of $84,017.51 (Adm. 11, 21 T. 63436) Appellant also took out a debt consolidation loan in 2007 of about $180,000 and encumbered it on the duplex which is the parties’ only marital real property. The stipulated mortgage balance is $173,000. (R. Adm. 1)

Appellant gave a significant amount of money to his former wifeJoyce Johnson and her associates without Respondent’s knowledge or consent. (Ex. 12, 13, 19). Appellant admitted to giving Ms. Johnson and her daughter “$89,000 charged to [his] credit card or checking account for the benefit of those persons” and that ‘$33,000 represents unauthorized or fraudulent charges.” (R. Adm. 2-3) [ Footnote 4 In Appellant’s post-trial motion he stated $86,000 as the total funds given to Ms. Johnson and relatives. This figure is what ultimately was used by the court in its findings. (A. Adm. 15)] Appellant also testified that when he gave Ms. Johnson money, it was “usually with the firm expectation of being repaid immediately” and that Ms. Johnson“has signed a number of contracts ... which she hasn’t repaid.” (T. 365-366) He also testified that he is expecting a payment of $30,000 from Ms. Johnson.” (T. 366)

Appellant testified that his Citi business credit card was fraudulently used by Ms. Johnson or her relatives; and that Ms. Johnson had forged his checks and deposited them into her daughter’s bank account. (T. 366-369) He testified that he chose not to prosecute Ms. Johnson or her associates for stealing these funds. (T. 368-369) Appellant also allowed Ms. Johnson to live in the four-plex charging her “a couple of hundred dollars” when the unit goes for $916 a month. (A. Adm. 34, T. 426-427) The court found that Appellant granted rent relief of about $5,600. (A. Adm. 34)

ARGUMENT

Standard of review

On an appeal from a judgment after trial, the only questions for review are whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989) The district court’s findings of fact can only be overturned if they are clearly erroneous, and the appellate court will not overturn a case unless the party challenging the findings shows that despite viewing the evidence in the light most favorable to the district court’s findings, the appellate court is left with the definite and firm conviction that a mistake was made. Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000)

The district court has broad discretion in evaluating and dividing property in a marital dissolution, and its decision will not be overturned unless it abused that discretion. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002) An appellate court will affirm the district court’s division of property if it had an acceptable basis in fact and principle. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984) (citing Senglaub v. Senglaub, 302 Minn. 547, 548, 224 N.W.2d 514, 515-516 (1974); Castonguay v. Castonguay, 306 N.W.2d 143, 147 (Minn. 1981); See Bollenbach v. Bollenbach, 175 N.W.2d 148, 154 (Minn. 1970) (Appellate court must affirm the decision made if it has an acceptable basis in fact and principle even though the reviewing court might have made a different disposition of the problem.)

II. The Trial Court Did Not Err or Abuse its Discretion in the Unequal Division of Marital Assets and Liabilities.

All property acquired by either spouse during a marriage is presumed to be marital property. Minn. Stat. Sec. 518.003, Subd. 3b. The court is required to “make a just and equitable division of the marital property of the parties ... after making findings regarding the division of property.” Minn. Stat. Sec. 518.58 (2012) Division of marital debt is treated in the same manner as division of assets, guided by equitable considerations inn distributing rights and liabilities and should have broad discretion in its distribution. Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984) (citing Kreidler v. Kreidler, 348 N.W.2d 780, 784 (Minn. App. 1984) A district court’s apportionment of marital debts is reviewed for abuse of discretion. Justis v. Justis, 384 N.W.2d 885, 888 (Minn.App. 1986)

As such, the court’s guiding principles for a just and equitable division of marital property are based in statute, requiring it to consider “all relevant factors including the length of the marriage, prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party.” Minn. Stat. Sec. 519.58, subd. 1.

In this case, the court assigned both mortgages totaling $257,017.51 to the Appellant because these debts are secured by the properties awarded to Appellant. (A. Adm. 48) The court also divided the parties’ unsecured debts as follows:

Creditor Amount To Appellant To Respondent
Advanta $2,630 $2,630
City Business 5 $12,001.85 For #5466 For #2637
Menard’s $1,893.52 $1,893.52
F.B. Omaha $8,356.40 $8,356.40
Chase $3,278 $3,278
US Bank $39, 628.01 $39, 628.01
US Bank $5,976.67 $5,976.67
Respondent’s medical bills in China $3,000 $3,000

Total $79,764.45

[Footnote 5 This total amount is for the count ending in 7415. Appellant agreed to be responsible for one of the remaining sub-accounts ending in 5466, and the court assigned the other one ending in 2673 to Respondent. (Addm. 27). Respondent’s counsel stated that sub-account had a balance of $500. (T. 10)

Appellant argues that the district court was not just and equitable in its division of that total marital debt by assigning a larger share to him because it did not make statutorily required findings to support such unequal division of debt. This is simply not true. A trial court’s division of marital property need not be mathematically equal; it only needs to be just and equitable. Lynch v. Lynch, 411 N.W.2d 263, 265 (Minn.App. 1987) (citing Ruzic v. Ruzic, 281 N.W.2d 502 (Minn. 1979); Johns v. Johns, 354 N.W.2d 564, 566 (Minn.App. 1984))

The district court made detailed findings in allocating a larger portion of the marital debt to Appellant. The court found Appellant to be a 71-Year-old retired person in good health and has medical insurance through Medicare. (A. Adm. 28, 45) Although he has about $2,000 per month in retirement income, and limited dividend income and net rental income, the court found that Appellant has $655,983 of net value in total non-marital real estate. (A. Adm. 30, 45, 46) This figure does not even include the Wunderlix celluloid prints or the securities he was awarded. (Ex. 300, A. Adm. 48)

In contrast, Respondent has a non-marital real estate in China valued at $200,000. (A. Adm. 46) [Footnote 6 This property serves as a temporary residence when she travels to China for medical treatment. (A. Adm. 7 footnote)] The court found her to be a 56-Year-old immigrant from China who has not mastered the English language, even to a moderate degree. (A. Adm. 28) The court based its finding on her English skills primarily on its observation of the Respondent at trial. (Id.) Appellant argues post-trial that Respondent speaks English sufficiently well but the court found he did not adduce credible evidence at trial. (A. Adm. 29) It is well established that deference should be given to trial court for credibility assessment of witnesses and the weight to be given to their testimony. General v. General, 409 N.W.2d 511, 513 (Minn. 1987)

The court found that Respondent had worked a short time at Target until a work injury; suffers from serious health issues including recurrent cancer for which she has undergone long bouts of debilitating chemotherapy; and requires regular insulin injections. (A. Adm. 29, T. 226, 256-257) Because she did not have medical insurance in the US, she frequently travels to China for medical treatment. (A. Adm. 29, T. 103, Ex. 118, #29)

The court has discretion to consider the overall fairness of the property distribution. Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989) (citing Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989)) This discretion allows the trial court to evaluate all of the property award components, including the overall assets of each party, and their relative ability to pay. (A. Adm. 5) The court has discretion to assign a significant portion of the marital debt to the party with the greater resources. Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. App. 1984) The appellate court has upheld the decision to apportion all of the debt to one party when the other party had minimal financial resources and found no error when trial court considers the debt along with the assets in the property division and apportions the debt to party with more financial resources. Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986)

In assigning the marital debt, the court here considered the fact that a significant portion of the debt ($257,017.51) was secured by real estate (duplex and four-plex) awarded to Appellant, and that making Respondent responsible for these debts when she has no means to pay for them amounts to a pyrrhic victory. (A. Adm. 6) Respondent has little liquid asset to pay even the small amount of debt assigned to her. (A. Adm. 33)

In marital property division, the court is also required to consider the “contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property.” Minn. Stat. Sec. 518.58, subd. 1 Here, the district court was allowed to consider the Appellant’s role in the depreciation of the overall marital estate. The court found that Appellant had depreciated the marital estate in two ways. First, Appellant had allowed Ms. Johnson to live in rental property without paying rent or at below market rent; given her or let her use significant amounts of money, and if these were loans as Appellant argues, has made no legitimate attempt to collect on them. (A. Adm. 33-34) At trial, Appellant admitted to foolishly making loans to Ms. Johnson. (T. 443) He acknowledged that Ms. Johnson has stolen money or used his credit cards without authorization, and Yet chose not to take meaningful steps to recover those amounts. (T. 366-369) The court found these activities amounted to reducing the overall marital estate equal to the amount of money given to Ms. Johnson. (A. Adm. 35-36)

Second, the court found that Appellant favored his non-marital properties to the disservice of the one marital property (duplex) by taking out a large consolidation loan against it. (A. Adm. 42) Significant cash was used to keep Milford (his inherited home) every Year as its utilities and taxes were more than twice the rent it was bringing in. (Id.) The four-plex (his non-marital property) lost money more often than it made money and the district court inferred that the cash flow likely came from proceeds of the $173,000 encumbrance on the marital duplex. (A. Adm. 42) Essentially, the court found that Appellant diverted marital income, thereby reducing the marital estate, to sustain his non-marital properties. Because the marital debt significantly exceeds the marital assets, the court exercised his discretion to achieve equity on the debt side. (A. Adm. 43)

The court’s consideration of the depreciation of the marital estate by one party is consistent with case law. In Filkins, the court assigned a larger share of the debt to the party responsible for incurring it, mostly for his own purposes. Filkins v. Filkins, 347 N.W.2d 526, 529 (Minn.App. 1984) The court in Filkins found that the district court had weighed the underlying reasons for the debts and carefully distributed the assets and debts in an equitable manner, by considering the spouse with the greater ability to pay and the nature of the debts. . Filkins v. Filkins, 347 N.W.2d 526, 529 (Minn.App. 1984)

Appellant argues that by not prosecuting Ms. Johnson and others for taking money totaling $33,000, he was attempting to “preserve” assets since legal action would ruin his chances of recovery and that by doing so he was actually conserving marital assets. This same argument was made at trial and clearly the trial court did not find this to be credible. (T. 366-369) Appellate courts give deference to the trial court’s credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988))

Appellant also proposes to take out the amount he gave to Ms. Johnson and others from the pool of marital debt and divide the remainder equally with the Respondent. Case law has long established that property division need not be mathematically equal to be just and equitable. Lynch, 411 N.W.2d at 265; Johns, 354 N.W.2d at 566. Furthermore, the trial court has wide discretion in crafting marital property division and as long as it has an acceptable basis in fact and principle, the appellate court should not disturb it even though the reviewing court may have taken a different approach. Servin, 345 N.W.2d at 750.

Appellant also argued that the court “change the nature of the debt” when it assigned both mortgages to him. This is simply incorrect. The court found the mortgages to be marital debt and assigned them to Appellant on the basis that they are tied to the real estate awarded him and he has the greater ability to pay. Appellant also argued that the court did not make adequate findings to support its division of marital property because there was no total dollar amount of marital property from which to divide. There is also incorrect. The court made detailed findings of the parties’ assets and liabilities and determined that there was very little marital asset to divide, but a significant marital debt to divide. (See Statement of the Facts, supra.) The trial court is not required to be mathematically exact in its valuation of assets as long as “the value arrived at lies within a reasonable range of figures.” Johnson v. Johnson, 277 N.W.2d 208 (Minn. 1979) Based on the testimony adduced at trial and documentary evidence provided by the parties, the court applied its principles of assigning debt to the party with the larger overall asset and greater ability to pay to the debt.

Qwest stock

Appellant further argued that the court erred in awarding Respondent stock that has been sold. However, the Respondent was the one handing all of the parties’ transactions and he was responsible for producing documentation concerning the parties’ marital debts and assets. The court found him to be less than complete in cooperating with discovery and took great effort in assessing the equity position of the parties and found no sale documentation concerning Qwest stock. (A. Adm. 35, 43) Therefore, it awarded this stock to Respondent under the assumption that the parties’ still owned it. (Id.) Even if this was error, it was de minimis error. Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985)

III. The Trial Court Did Not Err or Abuse its Discretion in Awarding Permanent Spousal Maintenance to Respondent.

Maintenance awards are not altered on appeal unless the district court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982) That discretion must be examined in light of the controlling statutory guidelines. (Id.) The court is required to have findings that show it considered the relevant factors in determining the amount of maintenance. Stich v. Stich, 435 N.W.2d 52 (Minn. 1989) It must make findings regarding whether the requesting spouse lacks sufficient property, including marital property apportioned to her or is unable to provide adequate self-support ... through appropriate employment. Minn. Stat. Sec 518.552, subd. 1(a) (2012)

In determining the amount and duration of maintenance, the court is required to consider additional relevant factors including the financial resources of the party seeking maintenance, including marital property apportioned to her, the party’s ability to meet needs independently; the probability, given the party’s age and skills, of their completing education or training to be fully or partially self-supporting; standard of living established during the marriage; duration of the marriage; and in the case of homemaker, the length of absence from employment; the age and physical and emotion condition of the spouse seeking maintenance; the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and the contribution of each party in the acquisition, preservation, and depreciation in the value of the marital property. Minn. Stat. Sec. 518.552, subd. 1(b). (2012)

Consistent with these statutory factors, the basic consideration for spousal award are the financial need of the recipient and the ability to meet that need and the financial condition of the spouse providing maintenance. Novick v. Novick, 366 N.W.2d 330, 334 (Minn. App. 1985) (citing Krick v. Krick, 349 N.W.2d 350 (Minn. App.1984))

In assessing Respondent’s need and ability to meet that need, the district court found that from a need-based perspective, she is a strong candidate for permanent spousal maintenance in light of the statutory factors. Even with no-rent monthly need of $1,000, she is unable to independently support herself as she only receives $300 in retirement income. The court found that Appellant, with a monthly income of $2,000, and monthly need of $2,070, lacks the income to income to meet his needs and still contribute to Respondent’s needs in a significant amount, given his limited rental and dividend income. (A. Adm. 30)

Considering the needs of the Respondent and the paltry marital asset she was awarded, as well as other statutory findings, the district court here exercised its wide discretion to award maintenance to Respondent by making the parties share the economic hardship of their dissolution and awarded her $500 in permanent spousal maintenance. (A. Adm. 30) The court recognized that in so doing, the Appellant will not be able to meet his needs out of this current income, but would be able to meet his needs if Respondent stopped diverting his rental income to cover losses on his inherited Milford home (which the court found Respondent had done during his marriage). Essentially, the court, considered that the $9,000 cash flow from the nine-unit would be freed up to pay the maintenance award. (A. Adm. 24, 31)

The principle that changes in living standards resulting from dissolution should be equalized is supported by precedent, stating that a spouse requesting maintenance is entitled to support that is not simply that which will supply her with the bare necessities of life, but such a sum as will keep her in the situation and condition in which respondent’s means entitle her to live. Arundel v. Arundel, 281 N.W.2d 663 (Minn. 1979 This principle also applies when there is an insufficient income to pay the maintenance and the obligor’s reasonable expenses. Justis at 891-892. The appellate court has upheld a maintenance award even though doing so caused husband to have a shortfall, when the court found wife had a need for maintenance. Id. See also Parker v. Parker 1997 WL 658938 (Minn. App. 1997) (The court upheld a maintenance award when recipient spouse suffered a shortfall of $2,468 in meeting her expenses, when the obligor had a $408 surplus. The court awarded the surplus to the obligee and divided the shortfall and made the parties share in the hardship.).

The Appellant challenges each of the statutory findings made by the court by asserting facts not in evidence; gives contradictory information or asserts irrelevant facts. For instance, Appellant mentions government benefit that appellant is allegedly receiving which is not in evidence; that Respondent’s daughter has ability to support her as well as other extended family’s resources. Appellate courts may not consider matters outside the record on appeal and will strike references to such matters from the parties’ briefs. Fabio v. Bellomo, 489 N.W.2d 241 (Minn. App. 1992) aff’d 504 N.W.2d 758 (Minn. 1993)

Appellant also gives contradictory information that is not in evidence by arguing that his expenses are a lot higher than what he stated in his interrogatory answers. (Ex. 24A) He now asserts that his expenses are actually $3,920 not $2,070. (A. Brf. 41) He also questions the court’s credibility finding of Respondent’s language skills as “lame;” and second guesses each finding the district court made regarding Respondent’s employability, vocational prospects, and current health condition. (A. Brf. 45-47)

Appellant assets that the court did not consider his need and lack of resources when nothing could be further from the truth. Appellant also argues that the court did not properly calculate the income shortfall of parties because it did not consider the $300 that the Respondent receives, and that Respondent’s $1,000 monthly need should have been reduced by $300 before dividing it between the parties. (A. Brf. 43) He also makes the absurd argument that based on his income shortfall, Respondent should be paying him spousal maintenance. (A. Brf. 42).

Appellant’s assertions have no basis in evidence nor supported by the standard of review required of the appellate court. The appellate court is not to reweigh the evidence but rather consider whether the evidence as a whole sustain the district court’s findings. In re Salkin, 430 N.W.2d 13 (Minn. App. 1988) rev, denied (Minn. 1988) The record shows that the maintenance award to Respondent is well supported by both statutory and equitable considerations.

IV. The Trial Court did Not Err or abuse its Discretion in Awarding Respondent $50,000 From the Appellant’s Non-marital Properties.

The court can apportion up to one-half of a spouse’s non-marital property if it finds a spouse’s “resources or property, including the spouse’s portion of the marital property ... are so inadequate as to work an unfair hardship, considering all relevant circumstances.” Minn. Stat. 518.58, subd. 2. (2012) If the court invades a party’s non-marital assets, it must make findings in support of the invasion. Hanson v. Hanson 378 N.W.2d 28, 30 (Minn. App. 1985) The statute provides the relevant factors to consider include the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, and opportunity for future acquisition of capital asses and income of each party. Minn. Stat. Sec. 518.58, subd. 2 (2012)

The courts have generally held that a very severe disparity between the parties is required to sustain a finding of unfair hardship necessary to apportion non-marital property. Ward v. Ward, 453 N.W.2d 729 (Minn. App. 1990) In Hanson, the court upheld findings of unfair hardship where there were specific findings regarding the requesting spouses’ language skills, financial needs and the parties’ incomes and found there was significant disparities between the parties’ incomes, financial needs and earning potential. Id. However, appellate court has also upheld findings of unfair hardship where there was less severe disparity between the parties. Reynolds v. Reynolds, 498 N.W.2d 266, 271 (Minn. App. 1993) (citing Frederiksen v. Frederiksen, 368 N.W.2d 769 (Minn.App. 1985), finding unfair hardship where the respondent suffered serious emotional and physical problems which would likely require costly medical treatment in the future; and where respondent had no marketable skills, while the appellant, despite having fluctuating incomes over the Years, was a fairly successful farmer. Similarly, in Roel v. Roel, 406 N.W.2d 619 (Minn. App.1987) , finding unfair hardship where both parties were unhealthy, the appellant (who was awarded a larger share of nonmarital property), had few marketable skills, and the respondent, while earning a fairly insignificant income, had earned a substantial income in the past.) In these cases, unfair hardship was upheld where the court felt one party at least has the potential for adequate future income. Id. at 271.

In the present case, the district court found that the parties were married for 11 Years, and Respondent is in her 50’s while Appellant is in his 70’s and they married later in life when the prospect of subsequent marriage is slim. (A, Adm. 44) The court found Respondent to be in poor health; suffers from recurrent cancer, and other health problems; is Chinese with little command of the English language; has a limited work history with no evidence of jobs skills that would warrant employment at a significant salary even if her health improves. (A. Adm. 44-45) Her only source of income is a modest retirement income from China; and that her overall prospect for improved economic status is extremely limited, especially considering the Appellant’s inability to pay a significant maintenance. (A. Adm. 45) The court also found that these circumstances portend a near destitute existence without the means to meet her basic needs independently, with no legitimate prospects of acquiring additional capital assets. (Id.)

With regard to the Appellant, the court found that he did not receive significant income at his pre-retirement job, and is not a likely candidate for significant future income. (Id.) However, he is in good health for his age and he purchased the rental properties (four-plex and nine-unit) based on his perceived need for retirement income. (Id.) The court did not find him to have substantial liquid assets, but found Appellant may still own stocks worth about $70,000. (A. Adm. 26, Ex. 302) The court found his total real estate equity to be $655.983 from all properties awarded him. (A. Adm. 46)

In contrast, Respondent has a non-marital real estate in China valued at $200,000. In considering an amount to award to Respondent, the court was mindful of Respondent’s reduced ability to build up new capital, the spousal maintenance he is ordering him to pay, the the large amount of debt allocated to him, among other things, and therefore awarded only $50,000 which is less than 10% of the Respondent’s total non-marital real estate equity. (Id.)

Appellant argues that the court’s basis for the award erroneously focused on his depreciation of the marital estate and his ability to sell assets to raise cash. However, the court is allowed to consider all relevant circumstances in considering unfair hardship. The court in Hanson considered the unique circumstances in addition to the statutory factors in awarding non-marital property. Hanson, 378 N.W.2d at 30. The court found the fact that the wife’s displacement from her native country was a relevant circumstance appropriate for consideration. Id. Similarly, the unique circumstances of the case, specifically, Appellant’s depreciation of significant marital estate - diverting positive flow from the nine-unit during the marriage and spending it on non-marital properties such has his inherited Milford home and giving away significant amounts of money and rent relief to Ms. Johnson - was a consideration appropriate for the court to make in addition to the required statutory factors for invading non-marital property.

The court also reasoned that if the money to Ms. Johnson and associates were legitimate loans, then that amount is a marital asset which the court has awarded to him so he can fund the maintenance as well as the $50,000 awarded to Respondent. (A. Adm. 37)

CONCLUSION

The District Court’s Findings of Fact are supported by the record and are not clearly erroneous. The district court’s division of the parties’ marital assets and liabilities; and award of permanent spousal maintenance and $50,000 to Respondent are supported by case law and the facts in the record. Therefore, the Respondent respectfully requires that the Court affirm the decision of the District Court.

Respectfully submitted,

 

Dated: __________________ By___________________________

Lynda Wong, Attorney at Law (#XXXXXXX)
Attorney for Respondent
XXXX Snelling Ave North, Suite C
Roseville, MN 55113
982-XXXX

 

CERTIFICATE OF Compliance

This Brief complies with the word/line limitations of Minn. R. Civ. App. P. 132.01, subd. 3(a). The brief was prepared using Microsoft Word 2013, which reports that the brief contains 5978 words.

 

Dated: __________________ By___________________________

Lynda Wong, Attorney at Law (#XXXXXXX)
Attorney for Respondent
XXXX Snelling Ave North, Suite C
Roseville, MN 55113
982-XXXX

INDEX TO ADDENDUM

 

Ex. 300 (Mack Partial Settlement Agreement May 2, 2012) 1

Ex. 19 (Email) 2

Parker v. Parker, C)-970332, (Minn. App. 1997) 19
1997 WL 658938

 

*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***
*** ***** *** ***** *** ***** *** ***** *** ***** *** ***** *** ***** ***

(44) Appellant’s Reply Brief for Court of Appeals (September 16, 2013) See divorcebook.html, chapter 64.

______________________

APPELLANT’S REPLY BRIEF
______________________

 

Chester A. Mack, Jr. Lynda Wong
1702 Glenwood Avenue XXXX Snelling Avenue North
Minneapolis, MN 55405 suite C
(612) 374-XXXX Roseville, MN 55113
982-XXXX

attorney ID # XXXXXXX

Attorney pro se for Appellant Attorney for Respondent

TABLE OF CONTENTS
page

Table of Authorities ii

Statement of the Facts 1

III The Parties” Income and Expenses 1

IV The Parties’ Marital Debt 1

Argument 3

Standard of Review 3

The Trial Court Did Not Err or Abuse its Discretion in the Unequal Division of Marital Assets and Liabilities 4

The Trial Court Did Not Err or Abuse its Discretion in Awarding Permanent Spousal Maintenance to Respondent 14

The Trial Court Did Not Err or Abuse its Discretion in Awarding Respondent $50,000 from the Appellant’s Non-Marital Properties 22

Conclusion 25

Certification 26

Index to Appendix 27

TABLE OF AUTHORITIES

Cases

Bollenbach v. Bollenbach, 175 N.W.2d 148 (1970) 3
Crosby v. Crosby, 587 N.W.2d 292 (Minn. Ct. App. 1998) 3
Dahlberg v. Dahlberg, 358 N.W.2d 76 (Minn. App. 1984) 9
Filkins v. Filkins, 347 N.W.2d 526 (Minn.App. 1981) 7, 9
Justis v. Justis, 384 N.W.2d 885 (Minn.App. 1986) 9
Krohn v. Krohn, 284 Minn. 95, 98 169 N.W.2d 389, 391 (1969) 4
Maher v. Maher, 393 N.W.2d 190 (Minn.App. 1986) 4
Moore v. Moore, 391 N.W.2d 42 (Minn.App. 1986) 21
Oberle v. Oberle 355 N.W.2d 210 (Minn.App. 1984) 4
Parker v. Parker CO-970332 (Minn. App. 1997 1997 658938 (unpublished) 17
Ward v. Ward, 453 N.W.2d 729 (Minn.App. 1990) 22

Statutes

Minnesota Statute § 480A.08(3) 18
Minnesota Statute § 518.003, Subd. 3b 6
Minnesota Statute § 518.58, Subd. 1 3, 5, 6, 10, 12
Minnesota Statute § 518.58, Subd. 1a 12
Minnesota Statute § 518.58, Subd. 2 10, 18, 22
Minnesota Statute § 518.552 14, 15, 19, 20

Other

Minnesota Family Law Practice Manual 3-4

STATEMENT OF THE FACTS

III The Parties” Income and Expenses

The Respondent’s attorney wrote: “Besides the approximately $9,000 of rental income from the nine unit, Appellant receives a combined monthly retirement income of about $2,000 from social security and pension.” (Respondent’s brief, p. 4) This statement gives a false picture of Appellant’s monthly income. First, the $9,000 figure represents the annual (not monthly) income from the nine-unit apartment building but mixes it with monthly income figures. Second, and even more importantly, the annual income from the the nine-unit apartment building does not fairly represent the income for the rental-property business as a whole. As exhibit A reveals, the four properties comprising this business lost an average of $9,287.80 per year according to the parties’ income-tax returns for 2006 through 2010. (trial exhibits 14-18)

IV The Parties’ Marital Debt

Both Judge Jensen’s order and Attorney Wong’s argument display consistent ambiguity concerning the marital debt. The unsecured debts are listed and given a total. (Respondent’s brief, p. 6) However, the two mortgages are discussed separately in the brief as if to suggest that they are the Appellant’s debt alone and, therefore, their amounts do not need to be included in the pool of marital property.
In fact, both mortgage debts are marital and do need to be included in the total. In that case, the marital debt would be $79,764 plus $84,018 plus $173,000 minus $5,000 or $331,782. (See Table B.) Without a total of marital debt, it would be impossible to calculate percentages of marital property assigned to either party; and without percentages, it would be impossible to determine whether the division of property was “just and equitable”.

ARGUMENT

I. Standard of review

Although the trial court is given great deference in its determination of facts, there are several situations that have caused appellate courts to overturn trial-court decisions. As Attorney Wong points out, the appellate court can also review decisions from the standpoint of whether the evidence submitted to the trial court justifies particular findings of fact and whether the findings of fact support the conclusions of law and the judgment. (Respondent’s brief, page 8) Additionally, trial-court judges are generally obliged to follow statute in divorce cases.

Citing Bollenbach v. Bollenbach, 175 N.W.2d 148 (1970) and other cases, Respondent argued that “an appellate court will affirm the district court’s division of property if it had an acceptable basis in fact and principle.” (Respondent’s brief, page 8) In this case, however, the trial court has failed to provide a total of marital property to be divided and been ambiguous in determining whether the two mortgage debts are marital or non-marital. It has violated principle in distributing marital debt by discretion rather than statute when it simply removed the mortgage debt from the pool of marital debt and assigned this to the Appellant because it was security for a particular kind of asset.

The trial court also violated the general requirement of Minnesota Statute § 518.58, Subd. 1 that the division of marital property be “fair and equitable”. Citing Crosby v. Crosby, 587 N.W.2d 292 (Minn. Ct. App. 1998), the Minnesota Family Law Practice Manual states on page 10-13: “Courts are not required to evenly divide the marital estate, but they generally attempt to make an award granting each party a substantially equal portion of the marital assets.” Marital debts are to be treated the same as assets. Maher v. Maher, 393 N.W.2d 190 (Minn.App. 1986) To award more than 99 percent of the $216,000 net marital debt to the Appellant is clearly inequitable.

Rather than try to push the bar generally in one direction or another regarding judicial discretion, it would be well to heed the principle laid down by the Minnesota Supreme Court that in a property division “(e)ach case must be considered in light of its own particular facts.” Oberle v. Oberle 355 N.W.2d 210 (Minn. App. 1984) citing Krohn v. Krohn, 284 Minn. 95, 98 169 N.W.2d 389, 391 (1969)

In Oberle v. Oberle, the Court of Appeals held that, despite the broad discretion possessed by trial courts in dividing marital property, “the overriding requirement of statute governing the division of marital property is that the division be equitable.” It overturned the trial court’s decision for that reason in the Oberle case.

II. The Trial Court Did Not Err or Abuse its Discretion in the Unequal Division of Marital Assets and Liabilities

The trial court’s division of marital property was grossly unequal. The numbers are shown in Table B. The total marital debt is the unsecured debts (using Respondent’s figures) plus the two mortgages minus $5,000 in premarital debt or $331,781.96. There is an asset worth $110,000 awarded to the Appellant, and an asset worth $5,000 awarded to the Respondent. The calculation of remaining division removes this $115,000 from the pool of debt to be divided on the assumption that each party assumes responsibility for paying debt equal to the value of the asset received. The remaining debt to be divided would be $216,781.96.

According to the court order, the Respondent would have $976.67 left to pay (or 0.45 percent of the total debt) after the $5,000 of debt is removed while the Appellant would have have $215,805.29 of debt to pay (or 99.55 percent of the total) after he assumes $110,000 of debt related to the $110,000 asset. In short, nearly all of the very large remaining marital debt is assigned to the Appellant.
The division of marital property is governed by Minnesota Statute § 518.58, Subd. 1 which states that “the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of property.” The statutory “findings” consist of fourteen categories. The court is also required to take into consideration “the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.”

The Appellant pointed out that the trial court failed to justify its unequal division of marital property with reference to the statutory factors. (Appellant’s brief, page 29) The Respondent replied (Respondent’s brief, page 10): “This is simply not true. A trial court’s division of marital property need not be mathematically equal; it only needs to be just and equitable.” That reply is a non-sequitur. No argument was made by Appellant that the division of marital property had to be mathematically equal. The Respondent has here failed to address the issue raised by the Appellant in shifting the subject. The statutory factors are quoted generally (Respondent’s brief, bottom page 9) but there is no discussion of how they relate to this case.

The Appellant also argued that the Respondent’s contribution as a homemaker was well below what one might expect in a marriage considering that Respondent did not live in Minnesota much of the time after 2006. Appellant’s brief, page 29-30 A witness testified at trial that Respondent lived with her husband “less than twenty percent” of the time during that period after her daughter graduated from Carleton college. T-351 The Respondent’s brief failed to address that issue.

The Respondent wrote: “All property acquired by either party during a marriage is presumed to be marital property. Minn. Stat. Sec. 518.003, Subd. 3b” Respondent’s brief, page 9 This is incorrect. Minn. Stat. Sec. 518.003, Subd. 3b provides an exception for property “which (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse.” Under this exception, the $114,000 which the Appellant received from his brother’s life insurance policy would be non-marital property. However, the judge objected to Appellant’s argument that this non-marital money might have covered the assets “dissipated” to Ms. Johnson. Respondent’s brief, addendum 3, 15, 36 ¶ 810

The Respondent noted that “the court assigned both mortgages totaling $257,017.51 to the Appellant because these debts are secured by the properties awarded to Appellant.” Respondent’s brief, page 10 There is no statutory justification for this procedure. According to Minnesota Statute § 518.58, Subd. 1, all marital property including debt should be included in a pool of marital property and this property should be divided equitably.

In this case, however, the judge has matched a $160,000 non-marital asset (the four-plex at 1702 Glenwood Avenue) with an $84,017.51 marital debt, removed the debt from the marital debt pool, and claimed that the Appellant gained by this procedure because he was awarded his own non-marital asset. Appellant’s brief, Addendum 16 (debts), 32 The judge had no authority to award anyone’s non-marital property outside of Minnesota statute § 518.58, Subd. 2.

The trial-court judge also matched a $110,000 marital asset (the duplex at 1715 Glenwood Avenue) with a $173,000 marital debt, assigned both to the Appellant, taken the mortgage out of the pool of marital debt, and called it even, forcing the Appellant to take a $63,000 loss even before the distribution of marital property was made. See Appellant’s brief, Addendum 16, 28, 32. Again, the judge lacked discretion to distribute property, whether marital or non-marital, outside of the statutory requirements. “Generally, courts have no power to apportion property in a dissolution but by statute”. Filkins v. Filkins 347 N.W.2d 526 (Minn.App. 1984)

On page 11 of her brief, Respondent argued that the court properly awarded a lion-sized share of the marital debt to the Appellant because he was a 71-Year-old person “in good health” who has Medicare while the Respondent was “a 56-Year-old immigrant from China who has not mastered the English language even to a moderate degree.” It is unclear why the Appellant’s age advantage of 15 years made him more eligible to assume marital debt.

The Respondent’s alleged language problem was discussed extensively in Appellant’s brief. The Respondent’s brief claimed on page 11: “The court based its findings on her English skills primarily on its observation of the Respondent at trial.” That statement is untrue. The court instead based its findings on observation of other people who had used language translators. They had sometimes spoken in English at trial but the Respondent did not. Appellant’s brief, Addendum 28-29 ¶ 60

It is impossible to “observe” something that did not happen. The judge could not have known whether Respondent spoke English poorly if, as he claimed, he never heard her speak English. Furthermore, Appellant’s brief explained why Respondent, unlike the others, might rigorously have limited her testimony to what was conveyed through Chinese-interpreters: they were used to strategic advantage at the trial. She did not wish to blow her cover. Appellant’s brief, pages 45-46

The Respondent also argued (Respondent’s brief, page 11) that the trial-court judge awarded a disproportionate share of the marital debt to the Appellant because he possessed non-marital real estate worth $655,983 while the Respondent’s non-marital real estate was worth only $200,000. She failed to explain, either in statute or case law, why possession of non-marital property was relevant to the distribution of marital property.

Another reason given in Respondent’s brief (page 12) for awarding a much larger share of the marital debt to the Appellant is the Respondent’s health problems. Appellant’s brief pointed out that, while Respondent’s health problems were real, there was no attempt in the judge’s memorandum to assess Respondent’s current health situation or connect her past problems with inability to hold a paying job and, in turn, her financial future. Appellant’s brief, page 47 Furthermore, the judge ignored evidence that the Appellant, too, had health problems, although they may not have been as serious as Respondent’s. Exhibit 24A, request #42.

In the bottom paragraph on page 12 of her brief, Respondent argued that the judge awarded a disproportionate share of the marital debt to the Appellant because “the court has discretion to assign a significant portion of the marital debt to the party with the greater resources.” By greater resources, she meant non-marital assets. Two cases were cited in justification for this position: Dahlberg v. Dahlberg, 358 N.W.2d 76 (Minn. App. 1984) and Justis v. Justis, 384 N.W.2d 885 (Minn.App. 1986)

There is nothing in either case, Dahlberg v. Dahlberg or Justis v. Justis, to suggest that possession of non-marital property rather than employment earnings drove a decision to award a disproportionate share of marital property because the possessor thus had “more financial resources” or “greater ability to pay.” To the contrary, in the Dahlberg case, the husband was an executive at a construction firm earning $92,500 per year plus bonuses while the wife was the stay-at-home mother of of a retarded daughter who had not been gainfully employed since her marriage 26 years earlier. Clearly, the court was contemplating the differential in income or prospective income, not in possession of non-marital property, when it favored the wife in its decision.

In the Justis case, the husband was a medical practitioner with a base salary of $72,300 plus overtime and teaching income while the wife quit working after the birth of the couple’s second child eight years earlier. There is no evident reference to non-marital property in the case statement. Income and the future ability to acquire assets were the relevant factors in the distribution of marital property, not relative amounts of non-marital assets possessed by the two parties.

In the case of Filkins v. Filkins, 347 N.W.2d 526 (Minn.App. 1981) cited on page 14 of her brief, the Respondent again claimed the debt was assigned to the party “with the greater ability to pay.” Here again possession of non-marital property was not the issue. In that case, the husband was earning $41,000 annually from a sales job with a television station while the wife, earning a fraction of that amount, was a “traditional homemaker” who “recently returned to school to finish her degree.” Their marital home, in which the husband retained an interest, was the couple’s main property. “Ability to pay” certainly did not mean ability to raise cash by selling that home since the wife intended to live in it for the next ten years.

In the first paragraph of page 13 of her brief, the Respondent again argued that a trial-court judge could remove mortgage debt from the pool of marital debt and simply assign it to the Appellant because it was tied to a particular asset. This issue has been discussed above and also in Appellant’s brief. Appellant’s brief, pages 32-35 The trial court is obliged to follow statutes § 518.58, Subd. 1 and § 518.58, Subd. 2 respectively in distributing marital and non-marital property. The law does not contemplate that the two pools of property be mixed or that marital property be distributed outside of statute.

Echoing the judge, Respondent also argued that it would be a “pyrrhic victory” to award debt to the Respondent because creditors would come after the Appellant if she refused to pay. That may be true, but Appellant has proposed a way to divide the debt in a meaningful way: The Respondent would give him an unsecured note for $100,000 which could be discharged if $60,000 is paid within five Years. Appellant’s brief, page 61, conclusion

Finally, in the same paragraph (page 13), the Respondent’s brief states: “Respondent has little liquid asset to pay even the small amount of debt assigned to her.” The same observation might also be made of the Appellant. In fact, one might believe that for someone who has had no income but has been slipping deeper into debt by $30,000 for each year of the marriage, it might even be more difficult for the Appellant to pay the $215,805.09 in marital debt assigned to him than for the Respondent to pay the $5,976.67 in debt assigned to her, especially when she has $5,000 in a 401(k). However, both parties have non-marital real estate that might be sold to pay debts.

The remainder of page 13, page 14, and most of page 15 of the Respondent’s brief is devoted to “the depreciation of the overall marital estate” because of loans and gifts to “Ms. Johnson”, Appellant’s former wife, and her relatives. The Appellant responded in detail to these various issues in an initial version of his brief but, due to the 14,000-word limitation, was forced to focus on the core property issues and let go of the personal attacks relating to “dissipation” of property and problems with “veracity”. A response to the latter may be found both in the transcript and the Appellant’s post-trial motions for a new trial. A response to the “dissipation” issue will be made as follows based on what was included in the record.

First, no testimony was given to explain why Appellant initially made the loans to “Ms. Johnson”. During the trial, Appellant offered to shed light on this subject but the judge instructed him not to enter that area of discussion. T-79 Second, the Respondent repeatedly claimed throughout the trial and in her prepared documents that Ms. Johnson, Appellant’s former wife, was his current mistress, implying that the money advanced to her and her relatives were payments for sexual favors. The Appellant specifically denied this at trial. T-365 Even so, a lurid image of wrongdoing was created through these repeated suggestions that may have influenced the judge’s attitude toward the Appellant.

The Appellant was forthcoming with information about this area of concern. His email dated December 5, 2011, (Exhibit 19, Respondent’s brief) to Respondent’s previous attorney was the source of the $89,000 figure even though Appellant’s check registers were taken to that Attorney’s office and photocopied while Appellant was living away from home. (See trial Exhibit 11.) This email also explained that $33,000 of this sum represented unauthorized or fraudulent charges on credit cards and that between $5,000 and $10,000 of that money was recovered. It belies the judge’s specific finding that no credible attempt was made to collect the money and the general proposition that the money was intentionally transferred.

In his July 20, 2012 order, the trial-court judge initially couched his findings in terms of a “dissipation” claim under Minnesota statute § 518.58, Subd. 1a. Appellant’s brief, Appendix, pages 19-20, 24 Then, in response to Appellant’s arguments in the post-trial motions, he dropped the dissipation argument in favor of a looser claim of “depreciating” marital assets under Minnesota statute § 518.58, Subd. 1. Appellant’s brief, Addendum 13-15 , 36 The judge chose to focus on the depreciation aspect and ignore the remaining (underlined) parts of the “contribution of each in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property” where the Appellant made the sole contribution.

In either case, however, there must be an element of intent. For example, if a party to a marriage made a bad stock-market investment, that would not be considered “dissipating” or “depreciating” assets because the investment was made in good faith. Likewise, the Appellant made the initial loans for a good reason and did later attempt to preserve assets in failing to prosecute the perpetrator although the judge did not believe him. Respondent’s brief, page 15

Even so, the transfer of money to Ms. Johnson cast a pall over the entire proceeding so that it became a factor not only in the division of marital property but also in the judge’s decision to invade the Appellant’s non-marital property. Appellant’s brief, Addendum 34-35, 46 During the trial, the Appellant gave the judge a spreadsheet which proposed to remove the dissipated assets from marital debt, assign this debt to himself, and then have the judge divide the remaining marital debt equitably. (Exhibits 301-303, T-444) The judge preferred to have the $89,000 be a reason to assign $215,000 of marital debt to the Appellant and invade his non-marital property.

The Respondent in her brief acknowledged that “Appellant also proposes to take out the amount he gave to Ms. Johnson and others from the pool of marital debt and divide the remainder equally with the Respondent.” Then, instead of stating why this would not be acceptable, she followed with another non sequitur - the same one that was used before: “Case law has long established that property division need not be mathematically equal to be just and equitable.” Respondent’s brief, page 15

With respect to Appellant’s argument that a total of marital property was needed before an equitable division could be made between the parties, the Respondent argued: “(This) is also incorrect. The court made detailed findings of the parties’ assets and liabilities and determined that there was very little marital assets to divide but a significant marital debt to divide ... The trial court is not required to be mathematically exact in its valuation of assets.” Respondent’s brief, pages 15-16 Again, a non sequitur is offered in response to the Appellant’s argument. The court clearly did not offer a total of marital property.

With respect to award of the Qwest stock, the judge overlooked the fact that its sale was disclosed in Exhibit 24A, request No. 4, which the Respondent introduced into the record.

Even though a “just and equitable” division of property may be largely in the eye of the beholder, it would not seem just or equitable for a trial-court judge to award nearly all of the more than $200,000 of net marital debt to the Appellant (Table B, Appellant’s brief, Addendum 50) who, in good financial shape at the time of the marriage, saw his net worth decline by more than half a million dollars during the marriage (T-443), who assumed most of the household expenses while giving his wife and daughter more than $100,000 beyond that amount (T-431, T-438) , who used his $114,000 non-marital proceeds from a life-insurance policy to support living expenses (T-120, T-439) , who sold tens of thousands of dollars of non-marital stock to support the marriage, who is sinking under the burden of interest payments (T-370, T-433) and is financially so hard-pressed that he cannot afford an attorney (T-445), while the Respondent contributed virtually no money to the marriage but helped finance her daughter’s college education (T-248), gave her daughter $100,000 to help purchase a $320,000 townhouse in a Washington, D.C. suburb shortly before filing for divorce (T-263-267), obtained U.S. citizenship both for herself and daughter (Ex. 375), and has seen her non-marital real estate in China appreciate greatly in price during the marriage (T-443). On the face of it, from a layman’s perspective, such a decision seems unfair.

III. The Trial Court Did Not Err or Abuse its Discretion in Awarding Permanent Spousal Maintenance to Respondent

The award of spousal maintenance is governed by Minnesota Statute § 518.552. Such an award can be made when a party to the marriage, requesting maintenance, has insufficient property to support herself or himself especially during a period of training for employment, or is unable to provide immediate self-support, or is the custodian of a minor child. We can rule out the last situation.

Regarding the other two, the trial court found that the Respondent lacked sufficient property even though she owned a $200,000 condominium in China and had recently sold another Chinese property worth $100,000 and given the proceeds to her daughter shortly before filing for divorce. (See Respondent’s brief, page 2) With respect to self-support, she was considered potentially “destitute” if she did not receive a maintenance award. The reason she allegedly could not support herself was, again, poor health and lack of English-speaking ability.

In Minnesota Statute § 518.552, there is also a requirement that the court take into consideration “the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.” In this case, the trial court did consider the Appellant’s financial situation and found him unable to meet his needs while paying maintenance. Appellant’s brief, Addendum 30 ¶ 65-66 Nevertheless, it ordered permanent spousal maintenance of $500 per month. Appellant’s brief, Addendum 47 This was a case of the conclusion of law not fitting the findings of fact.

On page 17 of Respondent’s brief, a statement is made that “in determining the amount and duration of maintenance, the court is required to consider additional relevant factors including the financial resources of the party seeking maintenance, including marital property awarded to her, the party’s ability to meet needs independently ... the ability of the spouse from whom maintenance to meet meets ...” Here again the court failed to do a review of the statutory factors although several of the items were discussed in connection with the award of non-marital property.

Regarding the last point, the judge wrote: “Respondent does not generate enough current income to meet his needs and pay a significant amount of maintenance. This means that Petitioner will walk away from this dissolution without any maintenance unless I exercise my discretion to make the parties share the economic hardship of their dissolution.” (Appellant’s brief, Addendum 30) Characteristically, this trial-court judge is showing concern for the situation of the one party but not for that of the other.

To skirt the statutory requirement of considering the obligor’s situation, the trial-court judge cited case law that allowed him to award maintenance under a “sharing the hardship” doctrine. Essentially, this meant that he would calculate the income shortfall (monthly income minus expenses) for both parties and then award maintenance so that the two shortfalls would be equal. Although the judge did not specify the incomes and expenses, it may be inferred from his reasoning and result that the judge believed the Appellant had income and expenses in an equal amount producing no (zero) income shortfall while the Respondent had monthly expenses of $1,000 and no (zero) income producing a shortfall of $1,000. The $500 monthly payment to the Respondent would equalize the shortfall at $500 apiece. Appellant’s brief, Addendum 29-31

An obvious problem with this procedure is that the trial-court judge did not use the right numbers. In deciding that the Respondent had no monthly income, he ignored evidence in the record that reported income ranging between $300 and $780. Appellant’s brief, page 42 The Respondent’s own exhibit (E5) on which the judge depended for expenses reported that she had income of $400 per month. Exhibit 24A, introduced by Respondent, reported that Appellant had monthly income of $2,000 and monthly expenses of $2,070 which would produce a $70 monthly shortfall, not zero. Therefore, on the face of it, the judge’s calculation of the income for both parties is faulty. Using numbers in the Respondent’s brief (page 18), the Respondent would have an income shortfall of $700 per month ($1,000 minus $300) while the Appellant would have an income shortfall of $70 per month ($2,070 minus $2,000). A payment of $315 from the Appellant to the Respondent would equalize the monthly income shortfall at $385 apiece. Instead, the judge awarded the Respondent $500.

A more serious problem, however, is that the Appellant’s expense budget does not fairly represent expenses if interest on the marital debt is taken into consideration. The Appellant testified at trial that the monthly interest on the acquired debt exceeded the amount of his monthly retirement income. T-370, T-433 The judge, however, ignored that testimony in his calculation of “sharing the hardship”. He instead relied upon an exhibit (24A) which, though prepared by Appellant, was put into evidence by the Respondent. In estimating his monthly interest expense to be $150, the Appellant thought he was being asked to furnish numbers related to his normal living habits rather than the situation that he would face if made to assume more than $300,000 of marital debt (which he did not know at the time).
The Appellant offered his best estimate of the unduplicated interest expense in his post-trial motions, but the judge simply ignored this calculation. Appellant’s brief, Appendix 52 ¶ 33-34 Also, the Respondent in her brief (page 20) offered no response to this argument other than to assert the the interest burden represented “contradictory evidence that is not in evidence.” Trial testimony is considered evidence.

In utilizing the “sharing the hardship” doctrine, the trial-court judge relied primarily on case law Parker v. Parker, an unpublished opinion whose extract states: “This opinion is designated as unpublished and may not be cited except as provided by Minn. St. Sec. 480A.08(3).” A copy of this opinion is attached to Respondent’s brief. Minnesota statute 480A.08(3) states: “Unpublished opinions of the Court of Appeals are not precedential.” It appears to Appellant that the case of Parker v. Parker is being improperly used as a precedent for the present case.

On page 19 of her brief, the Respondent argued that, although the Appellant cannot currently afford spousal maintenance, he might be able to afford it if he sold his money-losing property in Milford, Pennsylvania, to which he has been “diverting” income received from his nine-unit apartment building at 1708 Glenwood Avenue. There are several problems with this argument.
First, as Table A shows, there is no income to be diverted if one considers the rental-property business as a whole. To cherry-pick the sole profitable property and ignore losses on the other three properties is quite improper as an accounting-based argument.

Second, over the five-year period, losses on the duplex located at 1715 Glenwood Avenue exceeded losses on the Milford property by $9,000. See Table A. Why did not the judge propose that the Appellant sell the duplex to free up cash for maintenance? Perhaps one reason was that, because the Milford property was Appellant’s ancestral home, he could suggest that continued retention of that property reflected emotional rather than rational factors causing Appellant to “favor” that property. Another reason might be to suggest that Appellant was scheming to preserve a non-marital asset (Milford) in case of divorce whereas the duplex at 1715 Glenwood was marital. However, the character of debt does not change when a particular type of asset is used for security.

Third, Minnesota Statute § 518.552 requires the trial-court judge to deal with the parties’ financial situation as it is, not as the judge thinks it might be. The judge himself wrote: “There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.” (Appellant’s brief, Addendum 28 ¶ 59) Yet, selling assets is precisely what the judge is proposing here. Especially in a depressed housing market, there are reasons not to sell real estate in order to relieve immediate cash-flow shortages.

The Respondent argued on page 19 that a maintenance award should enable Respondent to live above the level of “bare necessities” but at a level to which she became accustomed during the marriage. Yet, repeated testimony revealed that both parties to this marriage were frugal in their living habits. T-259, Appellant’s brief, Addendum 29

The argument relating to Respondent’s supposed destitution if she did not receive maintenance assumes that she does not receive income beyond the $300 or so received from Chinese social security. The Appellant in his brief suggested two possible additional sources of income: financial assistance from daughter Violet and assistance from the government. Appellant’s brief, pages 48-49 The Respondent’s brief now asserts that Appellant has asserted “facts not in evidence”, stating that “appellate courts may not consider matters outside the record on appeal and will strike references to such matters from the parties’ briefs.” Respondent’s brief, page 19

In fact, there are at least two references in the record relating to assistance from Respondent’s daughter. First, the record shows that Respondent and her daughter share a savings/checking account at Wells Fargo from which both parties withdraw funds but to which only the daughter contributes funds. T110, E4, Exh. 118 request #7 Second, the Respondent’s answer to an interrogatory question (E118 #5) revealed that the daughter had spent $12,000 on her mother’s attorney’s fees and court costs, claiming however that this was merely a loan. That, too, is in the record. It was also in the Appellant’s brief but the Respondent ignored this evidence.

With respect to government assistance, Appellant had prepared an exhibit showing that Respondent was approved for a government medical program called “Assured Access” but Respondent’s attorney successfully objected to this exhibit. Even so, government programs of medical and financial assistance are a common fixture of life for U.S. citizens whose health problems render them unable to hold significant gainful employment as the court has decided applies to this case. The judge found that Respondent, without maintenance, would lead “a near destitute existence, unable to meet her basic needs on her own”. Appellant’s brief, Addendum 45 ¶ 102 That conclusion assumes, of course, that she will not receive government assistance which would elevate her above destitution. Since the judge does not know whether or not she will receive such assistance, his finding to conclude “near destitution” is not adequately supported by fact.

There was another reason for denying spousal maintenance to which the Respondent did not respond in this section of the brief. She did acknowledge on the section on “the parties’ non-marital properties” (Respondent’s brief, page 2) that the Respondent owned a condominium apartment in Beijing worth $200,000. She also acknowledged that the Respondent had owned another apartment in Beijing but had sold it for $100,000 in October 2010 and given the proceeds from that sale to her daughter. (Respondent filed for divorce in March 2011.)

This raises two issues: First, Minnesota Statute § 518.552 conditions receipt of spousal maintenance on two conditions. One is that “the spouse seeking maintenance (a) lacks sufficient property ... to provide for reasonable needs.” Continued ownership of property in China worth $200,000 ought to be “sufficient property” under this statute. Destitute persons do not normally have residences on two continents (one admittedly owned by the daughter yet a place where she can effectively live rent free and the other owned outright). If her current resources are inadequate, the Respondent could always sell the $200,000 condo in China to acquire a nest egg to meet those needs. Alternatively, she could gain immediate income by renting out the Beijing apartment.

The second issue is that, until October 2010, she owned a second apartment worth $100,000. T-245 That ownership, if continued, would have made it even more unreasonable to conclude “near destitution”. However, the Respondent gave all the money from that sale to her daughter a mere five months before filing for divorce. Was this transfer done “in anticipation of divorce”?
Moore v. Moore, 391 N.W.2d 42 (Minn.App. 1986) “A party to a marriage subject to severance in divorce proceedings cannot be permitted to subvert the orderly processes of the courts by concealing, dissipating, or misusing his assets in anticipation of divorce so as to reduce the property available for division or as a standard for the court in fixing payments for alimony or support.”

IV. The Trial Court Did Not Err or Abuse its Discretion in Awarding Respondent $50,000 from the Appellant’s Non-Marital Properties

Minnesota Statute § 518.58, Subd. 2 governs the distribution of non-marital property. This statute states: “If the court finds that either spouse’s resources or property, including the spouse’s portion of the marital property ... are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may apportion up to one-half of the property otherwise excluded ... to prevent the unfair hardship... If the court apportions property other than marital property, it shall make findings in support of the apportionment. The findings shall be based on all relevant factors.”

The Respondent properly observes that “a very severe disparity between the parties is required to sustain a finding of of unfair hardship necessary to apportion non-marital property.” Respondent’s brief, page 21 Ward v. Ward, 453 N.W.2d 729 (Minn.App. 1990) Not only does a party have inadequate resources for living, but there must be a “disparity” which means a difference in the resources between two parties. Both parties to this marriage own hundreds of thousands of dollars of non-marital real estate but have few current or liquid resources. However, after the judge’s division of marital property, the Appellant has more than $300,000 of debt on which interest must be paid while the Respondent has less than $1,000 of debt after applying the proceeds of her 401(k). There is an extreme disparity between the parties in that regard.

The trial court did consider at least two of the statutory factors in awarding Respondent a share of the Appellant’s non-marital property. It found the Respondent unable to speak English, “even to a moderate degree”, and it found that the Respondent to be in “poor health” based on her breast-cancer operation in 2009 and follow-up procedures. The finding of “limited work history” is without foundation considering that the judge had received testimony that the Respondent worked at Target for three and a half Years (T-226), had no information whatsoever about her employment in China, and Respondent had refused to answer a question about that employment in her interrogatories. Exh. 118, request #3 It is also difficult to imagine how the age factor (70 Years for husband, 56 for wife) and length of the marriage (11 Years) worked to the Appellant’s advantage with respect to the award of non-marital property.

The Respondent wrote on page 23 of her brief: “The court did not find him to have substantial liquid assets, but found that the Appellant may still own stocks worth around $70,000.” A. Adm. 26, Ex. 302 That statement is incorrect. The Appellant has disposed of most of his stocks. Exhibit 302 is a deed to the Milford property according to transcript reporter, Kathy Appell, rather than a listing of stocks owned. The judge’s finding states: “Respondent’s interrogatory answers averred that the only stocks retained by the time of discovery included Wells Fargo, Gannett, Arbitron, and U.S. Bank with a combined value “between $15,000 and $20,000. Appellant’s brief, Addendum 26, Exhibit 24 Referee Raleigh’s March 28, 2012, order required the parties to ‘account for all [property] transfers between January 1, 2010 and the date of her order.’ Respondent did not provide this required accounting.”

The reason that Respondent (Appellant) did not provide the “required accounting” was not to avoid detection of property transfers but because he did not know about it. Judge Raleigh did issue an order on March 30, 2012, in response to the other party’s motions for temporary maintenance, but Appellant can find nothing in this order relating to a need to account for property transfers.
In his brief, the Appellant stressed the fact that the judge failed to provide a rationale based on “unfair hardship” as required by statute, instead stressing a number of other issues including dissipation of assets. Case law strongly suggests that there must be specific findings of unfair hardship to support the invasion of non-marital property. Appellant’s brief, 58 By statute, a trial-court judge does not have unlimited discretion to award such property up to 50 percent of its value; this must be done, if at all, to prevent unfair hardship. Especially considering the judge’s other two extreme awards that favor Respondent in dividing marital debt and in awarding permanent spousal maintenance, the Respondent’s situation can hardly be described as one of “unfair hardship”.

The Respondent does not specifically address this question. Instead, on page 24, her brief sums up the argument in favor of invading Appellant’s non-marital property in terms of the “unique circumstances” of being a Chinese immigrant in America, “the Appellant’s depreciation of significant marital estate” and the diversion of income from the nine-unit apartment building to help keep “his inherited Milford home”, with an extra nod to money given “Ms. Johnson”. These so-called “additional” factors are meant to replace and satisfy the statutory requirements.

CONCLUSION

The Appellant respectfully requests that the Court render a decision consistent with its requests set out in his initial brief.

Respectfully submitted,

Signed: _________________________ Dated: _______________
Chester A. Mack, Jr.

Appellant appearing pro-se

1702 Glenwood Avenue
Minneapolis, MN 55405

374-XXXX

Certificate of Brief Compliance

This Certificate was prepared by Chester A. Mack, Jr., Appellant.
Pages ’08, version 3.0.3 from Apple is the software used to prepare this brief.
Helvetica 13 point, a proportional font, was used for this brief.

The word count per Pages, including all text from the Statement of the Facts to
this Certificate, is 6,951 words.

Signed: ___________________________ Dated: __________________
Chester A. Mack, Jr.

Index to Addendum

Table A Rental Income received in 2006 - 2010, distributed by property

Table B Calculation of percentage of net marital debt awarded to each party

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(45) Notice of Nonoral Conference (September 18, 2013) See divorcebook.html, chapter 63.

 

MINNESOTA COURT OF APPEALS Minnesota Judicial Center 25 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, Minnesota 55155 (651) 297-1000

NOTICE OF NONORAL CONFERENCE Case Number: A13-XXXX

In re: Rose Fen Mack, petitioner, Respondent, vs. Chester Arthur Mack, Appellant **

This matter has been set for a nonoral conference on October 17, 2013 at the Minnesota Judicial Center. Counsel and parties are NOT allowed to make oral argument or attend the conference. Under Minn. Stat. § 480A.08, subd. 3(a), the court must issue all decisions within 90 days, unless the deadline is extended in a specific case by order of the chief judge. Some types of juvenile protection, adoption, and juvenile delinquency appeals are subject to court rules requiring a decision within 45 or 60 days. If applicable to this case, a decision will be issued within the shorter period.

Subject to substitution, the judges assigned to consider the case are:

Judge Gary L. Crippen for Judge Randolph W. Peterson
Judge Jill Flaskamp Halbrooks
Judge Kevin G. Ross

Date: September 18, 2013

 

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(46) Decision of Minnesota Court of Appeals (January 13, 2014) See divorcebook.html, chapter 66.

“This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA IN COURT OF APPEALS A13-XXXX

In re the Marriage of: Rose Fen Mack, petitioner, Respondent,
vs.
Chester Arthur Mack, Appellant.

Filed January 13, 2014 Affirmed in part, reversed in part
Ross, Judge

Hennepin County District Court File No. 27-FA-11-XXXX

Lynda Wong, Roseville, Minnesota (for respondent) Chester A. Mack, Jr., Minneapolis, Minnesota (pro se appellant)

Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Crippen, Judge. (Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.)

UNPUBLISHED OPINION
ROSS, Judge

Chester Mack contests the district court’s division of marital property,
award of spousal maintenance, and invasion of his nonmarital property from the
dissolution of his marriage to Rose Mack. Because the district court acted within its discretion when it divided the marital property and awarded spousal maintenance, we affirm in part. But because the district court acted beyond its discretion when it attempted to mitigate the hardship of one party, whose means do not cover her own expenses, by invading the marital property of the other party, whose means do not cover his own expenses, we reverse in part.

FACTS

The parties provided evidence of the following facts at their dissolution trial. Chester Mack and Rose Mack were married on January 28, 2000, in China when Chester was 58 Years old and Rose was 43. Rose, a Chinese citizen, moved to the United States with her then-teenage daughter in 2001. She worked three years and resigned her employment in 2006 when she injured her hip. She never returned to work and considers herself a homemaker. She has a $5,000 401(k) account. She receives about $300 a month from a Chinese retirement fund. Rose also continues to own an apartment in Beijing, valued at around $200,000, having sold one other Chinese property during the marriage.

Chester had an “accounting[-]related job.” Before the marriage he bought rental property to prepare for his retirement. He purchased two properties on Glenwood Avenue in north Minneapolis—a fourplex at 1702 Glenwood, valued at $160,000, and a nine-plex at 1708 Glenwood, valued at $280,000. Chester also owns a nonmarital cabin in Wisconsin, valued at $20,000, and a nonmarital house in Pennsylvania, valued at
$280,000. When he first married Rose, Chester relied on rental income, two retirement accounts, and stock dividends and distributions to cover his expenses.

Once married, the couple purchased properties at 1715 Glenwood and 1719 Glenwood, together worth $110,000. They fell into debt. Chester entered the marriage having only about $5,000 in debt, and Rose had none. In 2003, they borrowed $100,000 by mortgaging Chester’s fourplex. Chester consolidated a number of debts into a loan secured by a mortgage on the 1715 Glenwood property. A $173,000 debt remained on that mortgage. They refinanced the fourplex in 2010, and an $84,000 debt remains. The couple also had significant unsecured debt. Their credit lines at several banks and credit card debt totaled approximately $70,000.

Chester incurred additional debt through interactions with his former wife. He allowed her to live nearly rent-free in one of his properties. And he never required her to repay so-called “loans” he gave her. Chester admitted to “dissipat[ing]” about $86,000 in marital assets through these arrangements.

Rose has diabetes. She was also diagnosed with cancer in 2009 and sought medical treatment in China because she had no health insurance. When Rose returned from China in October 2010, she sold one property that she owned in Beijing and gave the proceeds to her daughter to purchase a townhouse in Virginia.

Rose petitioned for divorce in March 2011. Before the trial in May 2012, Rose and Chester entered into a partial settlement agreement, stipulating to values on some property and to partial division of their property.

At trial, Rose sought spousal maintenance, argued that she had obtained a marital interest in Chester’s premarital rental properties, and sought attorney’s fees. Chester sought an equal division of the marital debt and wanted a lien on Rose’s daughter’s townhouse because he claimed that it was purchased with proceeds from marital property. The district court found that Rose had no marital interest in Chester’s premarital properties. It allocated the ownership and debt of the marital properties at 1715 and 1719 Glenwood (which were encumbered by debt exceeding their value) and a substantial amount of the other marital debt to Chester, awarded Rose permanent spousal maintenance of $500 a month, and invaded Chester’s nonmarital property to award Rose $50,000.

The district court made minor changes after Chester moved it to amend the order. It left Chester solely responsible for the debt on both mortgages (totaling roughly $255,000) and about $65,000 in other debt. It assigned Rose only $8,000 of debt. Chester appeals.

DECISION

Chester Mack challenges the district court’s decisions to encumber him with a greater amount of debt than Rose, to grant Rose permanent spousal maintenance, and to invade his nonmarital property to award Rose $50,000. He also contends that the district court erred by not finding that Rose’s sale of her Beijing property constituted a transfer in anticipation of dissolution and by not granting him an interest in that property.

I

Chester contends that the district court abused its discretion by dividing the marital property unequally. District court discretion to divide marital property is broad. We will uphold a district court’s marital property division, even if we disagree with that division, so long as the division has a “basis in fact and principle.” Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002). A district court should consider all relevant factors, such as the length of the marriage and the age, health, station, occupation, sources of income, skills, employability, and needs of the parties, to come to a “just and equitable division of the marital property.” Minn. Stat. § 518.58, subd. 1 (2012). It should also consider “the contribution of each [spouse] in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property.” Id. Marital assets and debts are treated the same for purposes of marital property division. Dahlberg v. Dahlberg, 358 N.W.2d 76, 80 (Minn. 1984). Chester argues that the district court abused its discretion in four ways. He asserts it erred by failing to declare the total value of property to be divided, mischaracterizing some property, awarding an asset that no longer existed, and dividing property inequitably.

Chester’s contention that the district court failed to specify the total value of all debts does not persuade us to reverse. The district court’s order appears to have tracked all debts and assets. All marital property is referenced. No apparent prejudice resulted from the district court’s decision not to calculate a total value of the debt—a value that can be ascertained accurately from the findings. We therefore see no abuse of discretion in the omission.

Chester argues next that the district court mischaracterized some marital debt as nonmarital debt. The characterization of property is a question of law that we review de novo. Baker v. Baker, 753 N.W.2d 644, 649 (Minn. 2008). Any property or debt “acquired by the parties . . . at any time during the existence of the marriage relation” is presumed to be marital. Minn. Stat. § 518.003, subd. 3b (2012). This presumption can be overcome by other evidence, such as proof that it was acquired before the marriage, after the marriage as a gift or devise to only one spouse, or in exchange for such premarital or gifted property. Id., subd. 3b(a)–(c); Kerr v. Kerr, 770 N.W.2d 567, 569 (Minn. App. 2009). Chester asserts that the district court improperly characterized the $173,000 mortgage on the 1715 Glenwood property and the $84,000 mortgage on the fourplex as nonmarital. Although the district court seems to imply that these two mortgages secure nonmarital debt, it does accurately list both as marital debts. The findings of fact also seem to put the onus on Chester to explain what part of the consolidated $173,000 debt on the 1715 Glenwood property is nonmarital. Such a requirement would be contrary to statutory law and case law because Rose had the burden to demonstrate that the presumptively marital debt was nonmarital. See Maher v. Maher, 93 N.W.2d 190, 194 (Minn. App. 1986). But the record reveals that the district court properly characterized this debt as marital. Its original order found that the “marital debt[] includ[es] the $173,000 mortgage.” This clarifies the district court’s characterization.

Chester similarly challenges the district court’s statement that the “award” of the nonmarital fourplex represents a “net gain” to him of roughly $80,000. Chester correctly asserts that he is entitled to this nonmarital real property, so including the marital debt
attached to that property does not accurately support a calculation of a “net gain.” The misstatement caused confusion, but it resulted in no apparently errant consequence.

Chester next argues that the district court erred by purporting to award Qwest/Century Link stock that no longer existed because it had been sold nine years before the divorce. Assuming error occurred, the error as to Chester is harmless. See Minn. R. Civ. P. 61 (“The court . . . must disregard any error . . . [that] does not affect the substantial rights of the parties.”). The previously conveyed stock was erroneously awarded to Rose, not to Chester, and Rose did not appeal the errant award or contest any imbalance the error might have caused. Chester identifies no detriment to him.

Chester contends that the district court abused its discretion by burdening him with more debt than Rose and by failing to make adequate findings to support that decision. A district court need not apportion marital property equally so long as it apportions the property equitably. Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987). And it must explain its rationale. Dick v. Dick, 438 N.W.2d 435, 437 (Minn. App. 1989). The district court must also consider relevant factors. Minn. Stat. § 518.58, subd. 1.

The district court’s initial order assigned Chester about 98% of the marital debt because it found that he had incurred the mortgages essentially to offset the rent deficiencies in his nonmarital real estate and rolled his own debt into a new “jumbo” loan. It also reasoned that Chester had the greater ability to pay the debt because of his real estate holdings. The final result burdened Chester with the two mortgages and credit debt, totaling roughly $320,000. Adding the equity on the marital property that Chester
received, this left him with a net debt of about $210,000. By contrast, Rose was left with debt of only about $8,000. After Chester moved the district court to amend its findings, alleging an inequity, the district court further justified the debt-division decision by adding that Chester had wasted assets by his interactions with his former wife, redirecting marital funds to benefit her and diminish the marital estate.

The order and record indicate that the district court had a basis in fact and principle to divide the property as it did. Because the district court apportioned the majority of the debt to Chester rather than divide it equally, we calculate that Rose received roughly $106,000 less debt than she would have. Given the district court’s rationale and the record, we will not reverse its decision. A different district court decision-maker could have reasonably reached a different result. But given the district court’s plausible explanation and its broad discretion in this equitable decision, we hold that it acted within its discretion.

II

Chester argues that the district court erred by awarding Rose permanent spousal maintenance. We will reverse a spousal maintenance award only when we find “a clearly erroneous conclusion that is against logic and the facts on the record.” Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). Before awarding spousal maintenance, a district court must find that the spouse requesting it lacks sufficient means to provide adequate self-support. Minn. Stat. § 518.552, subd. 1 (2012). If the movant proves need, the district court must then consider relevant factors to determine the amount and duration of maintenance. Id., subd. 2. District courts have broad discretion in setting the amount and duration of spousal maintenance. Reinke v. Reinke, 464 N.W.2d 513, 514 (Minn. App. 1990). Considering many of the factors listed in the statute, the district court found need and awarded Rose $500 a month in permanent maintenance.

Chester contends that the district court clearly erred by finding that Rose has grim future employment prospects and abused its discretion by awarding maintenance even though Rose has a $200,000 property in China. Regarding future employment prospects, Chester questions the findings that Rose does not speak English well, that her medical conditions impede her employability, and that she may be “near destitute” without spousal maintenance.

The challenged findings have sufficient support in the record. We do not disturb factual findings that are supported by the record. Antone, 645 N.W.2d at 100. The district court found that Rose receives only $300 monthly from a retirement fund, contrasted with reasonable monthly expenses of $1,000. It found that Rose has a poor grasp of English because she relied on an interpreter during court proceedings. Rose introduced evidence through multiple witnesses of her current medical problems and significant anticipated cost of treatment. Chester failed to rebut Rose’s evidentially supported claims of need.

The district court considered the evidence that Rose owns a $200,000 property in China. Despite this evidence, the district court was convinced that Rose lacks sufficient property to provide for her reasonable needs. Given Rose’s bleak employment prospects and poor health, we cannot say that the district court’s rationale or findings reflect error.

Chester’s most persuasive argument concerning maintenance faults the district court for ordering maintenance despite recognizing that Chester is retired, had insufficient income to meet his own expenses, particularly while providing for Rose, and has his own bleak economic prospects. In the typical case, we would be inclined to reverse in this circumstance. When setting the amount of maintenance, the district court should consider the obligor’s ability to pay while still meeting his needs. Minn. Stat. § 518.552, subd. 2(g). But the district court emphasized that Chester diverted significant income during the marriage solely to benefit his nonmarital interests, such as maintaining his nonmarital Pennsylvania property in which the district court assigned no interest to Rose. And by comparison, Rose had a roughly $700 shortfall each month (about $300 in means for $1,000 in expenses) while Chester had only a $70 shortfall (about $2,000 in means for $2,070 in expenses). The district court then exercised its discretion to more evenly distribute the hardship. We have previously authorized this approach. See Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (affirming a modified award even when the obligor could not meet his reasonable expenses, including maintenance, with his income); Justis v. Justis, 384 N.W.2d 885, 891–92 (Minn. App. 1986) (affirming a spousal maintenance award when appellant had insufficient income to provide for himself, his children, and his former spouse), review denied (Minn. May 29, 1986). By awarding Rose $500 in monthly maintenance, the district court brought Rose to $800 a month, or 80% of her reasonable monthly expenses, and it left Chester with $1,500, or about 73% of his monthly expenses. Although Chester’s expenses exceed his income more than Rose’s expenses exceed her income, the district court implicitly recognized that Chester’s expenses are essentially unreasonable because they derive in part from his reallocation of marital assets to fund his nonmarital property. Chester offers reasonable grounds that might have convinced a different district court to conclude differently. But the district court’s finding of Rose’s need for maintenance is well-supported by evidence, and the district court has significant discretion in determining the maintenance amount in light of the marital standard of living. Applying our standard of review, we cannot say that the district court abused its discretion.

III

Chester challenges the district court’s decision to invade his nonmarital assets. The district court may invade a spouse’s nonmarital assets if the marital assets are so minimal that the other spouse will suffer an undue hardship without an additional award. Minn. Stat. § 518.58, subd. 2. The district court possesses some discretion to award nonmarital assets, but the discretion is narrower than in the property division context. Stageberg v. Stageberg, 695 N.W.2d 609, 618 (Minn. App. 2005), review denied (Minn. June 19, 2005). Awards of nonmarital property should occur only in an “unusual case.” Ward v. Ward, 453 N.W.2d 729, 733 (Minn. App. 1990), review denied (Minn. June 6, 1990). An undue hardship exists when there is a “very severe disparity” in assets and future earning potential between the parties. Id. at 733. The record must support the finding of an undue hardship, and the failure to make findings on the record constitutes an abuse of discretion. Id.

Chester argues that the district court failed to find an “undue hardship” and failed to base its findings on evidence. The district court expressly declared that it could award nonmarital property to avoid an undue hardship. It then awarded nonmarital property after it considered all of the factors listed in section 518.58, subdivision 2. Chester’s
argument that the district court failed to mention “undue hardship” or base its findings on evidence therefore fails.

Chester also asserts that the court abused its discretion by not considering his hardship after the divorce and by improperly considering his role in losing assets during the marriage. The assertion that the district court did not consider Chester’s hardship has little merit. The district court discussed in detail Chester’s circumstances—his age, his earning power, his portfolio, and his other property. The district court properly considered the statutory factors.

We are persuaded, however, by Chester’s charge that the district court overemphasized his depreciation of marital assets when it invaded his nonmarital property. Chester argued to the district court in his postdecision motion that the district court had misconstrued and misapplied the concept of “dissipation” of assets and used it improperly as a basis to invade his nonmarital property. The district court seems to have recognized that Chester’s argument is correct.

The district court originally awarded Rose $50,000 of Chester’s nonmarital property primarily because Chester’s arrangement with his former wife reduced the value of marital property. It invoked the statutory provisions requiring it to compensate Rose for what it referred to as Chester’s “dissipation” of the marital estate. See Minn. Stat § 518.58, subd. 1a (addressing compensation of one spouse for the other’s transferring, encumbering, concealing, or disposing of marital assets). But the relevant part of the statute governing what the district court referred to as Chester’s “dissipation” requires, among other things, that the district court find that the conduct occurred “in contemplation of commencing, or during the pendency of, the current dissolution.” Id. The district court made no finding that Chester’s arrangement with his former wife occurred in that fashion, and the record does not suggest that it did.

The district court’s amended order candidly retreats from its original position that “dissipation” supports the invasion of marital property. As noted in the previous section, the district court’s amended order redirects its concern over the misnamed “dissipation” rationale (Chester’s mid-marriage redirection of marital assets to benefit his former wife and incidentally diminish the value of the martial estate) to respond to Chester’s postdecision challenge to the assignment of almost all marital debt to Chester. Chester’s redirection of assets to his former wife appears to have cost the marital estate approximately $86,000, which does in part justify the assignment of the marital debt mostly to Chester. But because the full $86,000 of “dissipation” is remedied by awarding Chester a heavily disproportionate share of the marital debt, and because Rose is otherwise awarded spousal maintenance to cover most of her reasonable needs, there remains no justification for the district court’s decision to invade Chester’s nonmarital property to remedy Rose’s hardship.

We need not address Chester’s challenge to the finding that Rose suffers a hardship despite spousal maintenance because, even if she does, the district court abused its discretion by attempting to lessen that hardship by invading the nonmarital property of Chester, who was left with an even greater monthly budget deficit than Rose. The statutory factors do not justify the district court’s invasion of Chester’s nonmarital
property to order him to relinquish 10% of its value to Rose. We therefore reverse the district court’s decision on this issue.

IV

Chester next asserts that the district court erred by not making a finding as to whether Rose’s sale of her Beijing apartment constituted a transfer of property in anticipation of divorce. Unless property is a “marital asset,” it is not subject to Minnesota Statutes section 518.58, subdivision 1a. Rose’s small apartment was not marital property. It was acquired before the marriage, and the evidence does not support a finding that the sale proceeds became marital property. See Minn. Stat. § 518.003, subd. 3b. Chester has no claim to the proceeds. Any error committed by the district court on this point is therefore harmless.

Affirmed in part, reversed in part.”

 

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

 

(K) RESPONDENT’S APPEAL TO MINNESOTA SUPREME COURT AND COURT DECISION

(47) Petitioner’s Response to Appeal to the Minnesota Supreme Court (February 5, 2014) See divorcebook.html, chapter 69.

“ The husband is appealing the Minnesota Court of Appeals’ order to sustain a trial-court order for spousal maintenance but not the order assigning him a disproportionate share of the marital debt or the reversal of the trial-court order awarding respondent part of appellant’s non-marital property. There are at least two legal issues that require clarification.

1.
Legal issue: if a party to a divorce fails to manage his real-estate portfolio to maximize marital income and assets, can a trial-court judge disregard the statutory requirement in statute 518.552, subd. 2(g) that a decision regarding spousal maintenance take into consideration “the ability of the spouse from whom maintenance is sought to to meet needs while meeting those of the spouse seeking maintenance”? The Court of Appeals, without comment, stated that the trial court had used this reasoning to offset the statutory requirements. Court of Appeals decision p. 10, appendix p. 10

Statement of criteria: This is a question of law. In citing the trial court reasoning, the Court of Appeals offered no legal justification for that argument; it merely restated the argument and then issued a decision in line with its reasoning. The trial-court judge himself admitted: “There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.” Trial court ¶59, appendix p. 140 Yet, in suggesting that the Appellant could afford maintenance if he sold his Milford house, the judge was proposing precisely that. Minn. statute § 518.552 subd. 2(g) Trial court decision ¶68, appendix p. 143

Statement of the case: Neither the appellant nor the respondent had significant liquid assets or income at the time of the divorce. Trial court decision ¶87, appendix p. 149 However, their real estate holdings were significant. Trial court decision ¶12, ¶13, ¶16, and 18, appendix pp. 133-135 The parties possessed a marital duplex at 1715 Glenwood Avenue in Minneapolis. Trial court decision ¶14, appendix p. 133 In his amended order dated December 28, 2012, the trial-court judge admitted that the appellant could not meet his own financial needs if compelled to pay spousal maintenance. Trial court decision ¶68, appendix p. 143; See also Appellant’s brief, X(a), appendix p. 68 However, he reasoned that this might be possible if the appellant sold his house in Milford, Pennsylvania, whose annual expenses exceeded the annual rental income. Trial court decision 22., appendix 135; ¶84, appendix p. 149; ¶96, appendix p. 153-154 The judge further reasoned that the appellant had been “diverting” income received from the nine-unit apartment to the Milford property because it was non-marital and likely to be retained. Trial court decision ¶68, appendix p. 143 Regarding spousal maintenance, the Court of Appeals stated: “ In the typical case, we would be inclined to reverse in this circumstance. When setting the amount of maintenance, the district court should consider the obligor’s ability to pay while still meeting his needs ... But the district court emphasized that Chester diverted significant income during the marriage solely to benefit his nonmarital interests, such as maintaining his nonmarital Pennsylvania property in which the district court assigned no interest to Rose.” Court of Appeals decision p. 10, appendix p. 10 In other words, this issue was critical in the appellate court’s decision to uphold the award of spousal maintenance.

The argument: There is no provision of law of which appellant is aware that requires him to sell real estate in order to pay spousal maintenance. The trial court’s reasoning is couched in terms of active scheming to gain an advantage in divorce court by “diverting” resources from the parties’ marital to the appellant’s non-marital real estate. In fact, this “diversion” consisted of not selling an ancestral home inherited from his parents; he sold no real estate during the marriage. The Court of Appeals wrongly stated that the court believed “Chester diverted significant income during the marriage solely to benefit his nonmarital interests.” Court of Appeals decision p. 10. appendix p. 10 No, the rental-property business as a whole lost money, even if the apartment building made money. Schedule E of the parties’ tax return shows that an even greater loss of money than Milford was the “diversion” of the nonexistent income to the duplex at 1715 Glenwood Avenue, which was a marital property. Appellant’s reply brief, Index, Table A, appendix p. 112; Appendix 6 appendix p. 165 The Milford property was retained primarily as a place for retirement rather than an investment. The issue of diverted marital assets to the tune of $6,000 per year is also called into question by the fact that the trial court assigned the wife $106,000 less of the marital debt than her fair share. Court of Appeals decision p. 8, appendix p. 8

2.

Legal issue: Does case law supporting a “sharing the hardship” approach satisfy the statutory requirement in statute 518.552, subd. 2(g) that a trial-court judge take into consideration “the ability of the spouse from whom maintenance is sought to to meet needs while meeting those of the spouse seeking maintenance”? The Court of Appeals stated that the court had previously authorized this approach. Court of Appeals decision p. 10. appendix p. 10

Statement of criteria: This is a question of law. The trial court’s ruling cited case-law precedent in unpublished opinions, Seidl v. Seidl and Parker v. Parker, that are not to be used for precedent. Trial Court decision, footnote 7, appendix p. 121; footnote 3, appendix p. 142-143, Appellant’s brief, X(b), appendix p. 68 The Court of Appeals cited published opinions that do not embrace the “sharing the hardship” concept and whose case conditions bear little resemblance to the case under consideration. Minn. statute § 518.552 subd. 2(g),
Seidl v. Seidl, 1998 WL 8480 (Minn. App. 1998), Parker v. Parker, 1997 WL 658938, *4 (Minn. App. 1997), Ganyo v. Engen, 446 N.W.2d 683 (Minn.App. 1989), Justis v. Justis 384 N.W.2d 885, 891-92 (Minn.App. 1986)

Statement of the case: In dealing with the issue of the appellant’s inability to meet his own needs while paying alimony, the trial-court judge used case precedent in Parker v. Parker, an unpublished opinion, to justify requiring payment of alimony despite appellant’s lack of income or resources. Trial court decision, footnote 3, appendix p. 143 This case employed a “sharing the hardship” concept to the effect that alimony was authorized if it put both parties in the same situation after the transfer. Although he did not disclose the details of his calculation, it can be assumed that the judge reckoned that the wife had zero income and monthly needs of $1,000, that the husband had monthly income and expenses of $2,000, and that, if a payment of $500 per month were made from husband to wife, both parties would be $500 short in meeting their monthly needs. Trial court decision, ¶65, appendix p. 142; ¶66, appendix p. 142, ¶68, appendix p. 143 In making this calculation, the judge overlooked his own finding that the wife’s income was $300 per month (Trial court decision, ¶60, appendix p. 141), and evidence that the husband had expenses of $2,070 per month (Trial court decision, ¶64, appendix p. 141) not counting another $2,000 in monthly interest expense if he were made to assume the more than $300,000 of marital debt. Court of Appeals decision p. 7, appendix p. 7 The appellate court did not correct these errors. The trial-court judge also used an unpublished opinion as precedent. The Court of Appeals stated that “we have previously authorized this approach” in Ganyo v. Engen and in Justis v. Justis. Court of Appeals decision p. 10, appendix p. 10

The argument: Unpublished opinions are not supposed to be cited as precedent for a trial court’s rulings but the trial court did this anyhow. Trial Court decision, footnote 7, appendix p. 121 Perhaps in recognition of that fact, the Court of Appeals cited two published cases to justify the “sharing the hardship” calculation that skirted the statutory requirement that maintenance awards take into consideration the financial situation of the obligor, implying that maintenance would not be awarded if the obligor had insufficient income or liquid resources. The trial court judge admitted: “Respondent is a 71 Year-old retired person with less than $2,000 per month in combined pension and social security income plus steadily mounting debts. He clearly lacks sufficient retirement and social security income to meet his needs and still contribute to Petitioner’s needs in a significant amount.” Trial court decision, ¶65, appendix p. 142 The Court of Appeals cited the cases of Ganyo v. Engen and Justis v. Justis - both published cases - as authorizing the approach taken by the trial-court judge. Court of Appeals decision p. 10, appendix p. 10 However, those particular cases are inadequate as precedent. Neither refers to the “sharing the hardship” concept or any similar mathematical technique to find a just solution to mutual financial inadequacy. The two cases are similar to the present case in that the obligor’s monthly expenses were greater than income. Otherwise, the underlying conditions of the parties in those cases are entirely different. In Ganyo v. Engen, there was a motion to increase the wife’s maintenance because of a change in the parties’ financial situation after a bankruptcy reduced the employed husband’s debt payments while the wife’s income dropped. His monthly expenses slightly exceeded income. Vol. 446 N.W.2d, pp. 685-686 In Justis v. Justis, the employed appellant earned $72,000 a Year. However, the court found: “Appellant’s income is insufficient to meet the total needs of respondent, the children, and himself.” Vol. 384 N.W.2d, pp. 892-893 In the present case, appellant’s income, especially considering his debt load, is insufficient to meet his own needs alone. The appellate court might have set a new precedent for sharing the hardship but chose not to do so. The appellant is asking the Minnesota Supreme Court to clarify this issue.”

INDEX TO APPENDIX
pages

Appendix 1 Decision and opinion of the Minnesota Court of Appeals 1 - 14

Appendix 2 Appellant’s brief 15 - 78

Appendix 3 Appellant’s reply brief 79 - 112

Appendix 4 Trial court’s amended findings of fact, conclusions of law, order for judgment, and judgment and decree plus memoranda 113 - 164

Appendix 5 Table A attached to Appellant’s reply brief Note: The parties’ federal tax returns for 2006 through 2010 were entered into evidence as petitioner’s exhibits 14-18. 165”

 

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(48) Response to Petition for Review of Decision of Court of Appeals (March 2, 2014) See divorcebook.html, chapter 71.

STATE OF MINNESOTA
IN SUPREME COURT

In Re the Marriage of:

Chester Arthur Mack
Petitioner RESPONSE TO PETITION FOR REVIEW
OF DECISION OF COURT OF APPEALS
vs.

Rose Fen Mack Appellate Court Case No. A13-XXXX
Respondent
Date of Filling of Court of Appeals Decision
January 13, 2014

TO: The Supreme Court of the State of Minnesota

Respondent opposes Supreme court review of the Court of Appeals’ decision on spousal maintenance. In the event this Court grants review, Respondent requests cross-review of the Court of Appeals’ decision on the invasion of Petitioner’s non-marital property.

1. The legal issue raised by Petitioner and its resolution by the court of appeals.

Should spousal maintenance be awarded to Respondent who had a clear need for support if Petitioner’s monthly income exceeded his expenses, but had diverted significant marital income and assets to benefit his non-marital assets?

II. The court of appeals held: Yes, and affirmed the decision of the trial court.

No rule criteria were relied upon by Petitioner.

Petitioner does not invoke any criteria under Minn. R. Civ. App. P. 117, but alleges two other grounds as criteria for review. First, Petitioner claims the court of appeals offered no legal justification for its decision. Second, that the court of appeals relied on two decisions that do not specifically “embrace the ‘sharing the hardship’ concept and ‘whose case conditions bear little resemblance to the case under consideration.” (PFR,3) These so-called criteria do not support granting review in this case. The trial court applied governing statute and established principle from case law to resolve the unique circumstances of this case. The standard of review for an award of spousal maintenance is abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The court of appeals did not find an abuse of the trial court’s wide discretion on this issue. Additionally, the decision of this case is unpublished, therefore it only applies to the particular facts of this case, and has no precedential effect.

III. Statement of the case

Respondent Rose Mack (“Rose”) married Petitioner Chester Mack, Jr. (“Chester”) and moved to the United States from China. (PFR, Ap. 2) Rose filed for divorce after 11 Years of marriage. During their marriage, Rose had worked for 3 Years before stopping due to a work injury. (Id.) Rose was diagnosed with cancer and seeks medical treatment in China because she has no health insurance in the States. (PFR, Ap. 3) She receives about $300 a month from a Chinese retirement fund and owns an apartment in China where she stays while getting medical treatment. (PFR, Ap. 2, 199.)

Chester had retired from an accounting-related job when he married Rose. (PFR, ap. 3) Chester had bought two rental properties before his marriage to Rose and also inherited a non-marital house for which he had a renter. (PFR, Ap. 3, 135.) Once married, the couple purchased another rental property. (PFR, ap. 3) The parties’ had accrued significant debt during their marriage. (Id.) Chester incurred debt by giving his former wife, among other things, $86,000 from marital assets. (Id.) He also poured significant marital income to keep his non-marital properties afloat. (PFR, 7-8, 11, 152-153.) The trial court awarded Chester all of his non-marital real properties and the parties’ only marital real property, and assigned him the majority of the parties’ marital debt. (PFR, Ap. 157-158) The court of appeals affirmed the trial court’s decision on the division of marital debt. (PFR, Ap. 8)

The trial court also awarded $500 per month of permanent spousal maintenance to Rose despite finding that Chester had a shortfall in meeting his monthly expenses. (PFR, Ap. 4, 141-142) The court applied the “sharing the hardship” approach to equalize the hardship between the parties. (PFR, Ap, 142-143). Without maintenance contribution from Chester, Rose had a $700 monthly shortfall, while Chester had a $70 shortfall. (PRF, Ap. 11) The court of appeals found the trial court had correctly exercised its discretion to evenly distribute the hardship between the parties. (PRF, Ap. 10-11).

The trial court also awarded $50,000 to Rose from Chester’s non-marital properties based on a finding of undue hardship. (PFR, Ap. 148-149) However, the court of appeals reversed this decision, finding that since Chester was assigned a larger portion of the marital debt and ordered to pay spousal maintenance, there was no justification to invade his non-marital property to remedy Rose’s hardship. (PFR, Ap. 13)

IV. Argument

The trial court has wide discretion in awarding spousal maintenance, and can only be reversed if there is a clearly erroneous conclusion that is against logic and facts on the record. Dobrin v. Dobrin, 569 N.W. 2d 199, 200 (Minn. 1997). The court of appeals found that trial court followed the requisite statutory criteria in finding Rose did not have the means for adequate self-support, and had well-supported evidence of her need for spousal maintenance. (PFR, Ap. 10.) Pursuant to Minn. St at. Sec. 518.552, subd. 2(g), the trial court recognized that an award of maintenance must not only consider the need of the recipient but also the payer’s ability to meet that need. (PFR, Ap. 4, 141-14.) In assessing Chester’s ability to pay maintenance, the trial court acknowledged that Chester had a shortfall in meeting his monthly need. (PFR, Ap. 141-142) Despite this finding, the court used its discretion authorized by case law precedence to arrive at an equitable solution for the parties.

The discretion exercised by the trial court was to evenly distribute the economic hardship of the parties. (PRF, ap. 10.) The trial court referred to this principle or approach as “sharing the hardship.” (PRF, Ap. 142-143.) The court of appeals found this approach has already been authorized in two cases involving spousal maintenance and modifications. (Id.) [Footnote 1: The two cases cited by the court of appeals do not specifically use the term ‘sharing the hardship’ although both used the approach to order payment of maintenance when the payer/ obligor was unable to meet monthly expenses.] Both cases addressed the payer or obligor’s inability to meet reasonable monthly expenses when ordered to pay maintenance. In one case, the court of appeals affirmed a modified award even when obligor/payers could not meet his reasonable expenses with his income, if he paid maintenance. Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App 1989). In the other case, the court of appeals affirmed a spousal maintenance award when the obligor/payer had insufficient income to provide for himself, his children, and his former spouse. Justis v. Justis, 384 N.W.2d 683, 885, 891-92 (Minn. App 1986), review denied (Minn. May 29, 1986).

The trial court here had a rational basis to use this same approach to fashion an award of maintenance. It carefully considered each party’s future economic prospects, the assets awarded to each, and the monthly shortfall each would have with and without an award of maintenance. (PRF, ap. 140-144.) The trial court found that Chester had diverted a significant income during the marriage to benefit his non-marital interests; and that his reasonable monthly expenses would be lower if she stopped diverting part of his rental income to finance losses related to his inherited non-marital property. (PRF, ap. 10-11, 143.)

To apply the principle of distributing the hardship between the parties is fully within the discretion of the trial court. The court of appeals found the application of this approach to the circumstances of this case was proper. Furthermore, the court of appeals will not disturb a trial court’s award of maintenance unless the trial court abused its discretion. Here the trial court’s conclusions are well supported by the record and based on accepted legal principle.

Petitioner alleges he is being forced to sell real estate in order to pay for spousal maintenance; and questions the finding that he diverted marital assets to solely benefit his non-marital interests. (PRF, 2.) Challenges of this nature are insufficient reasons deserving of review by this court. Additionally, there is no reason for review because the resolution of this case is specific to the facts of this case and needs no clarification of law from this court. Minn. Stat. Sec. 480A.08, subd. 3(c).

V. Request for cross-review

Should this court decide to grant review, Rose respectfully requests a review of the court of appeal’s decision to reverse the trial court’s award of $50,000 from Chester’s non-marital assets. Minn. R. Civ. App. P. 117, subd. 4 The court’s reversal on this issue was primarily based on the finding that Rose’s undue hardship was mitigated by assigning Chester a larger share of the marital debt, and awarding Rose spousal maintenance to cover most of her needs. (PFR, 13.) As such, the court of appeals concluded that there was no justification for invasion of Chester’s non-marital property. Accordingly, if this court accepts review of the issue of spousal maintenance award, the reversal of the award of $50,000 from Chester’s non-marital property to remedy Rose’s undue hardship also deserves review.

For these reasons, Respondent requests an order denying review of the decision of the Court of Appeals as stated above.

Attorney for Respondent

Dated: March 2, 2014 By: C

Lynda Wong, Attorney at Law (#XXXXXXX)

XXXX Snelling Ave. North, Suite C
Roseville, MN 55113
(651) 982-XXXX

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(49) Decision of the Minnesota Supreme Court (March 18, 2014) See divorcebook.html, chapter 73.

“STATE OF MINNESOTA IN SUPREME COURT A13-XXXX

In re the Marriage of: Rose Fen Mack, petitioner,
Respondent,
vs. Chester Arthur Mack,
Petitioner.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the petition of Chester Arthur Mack for further review be, and the same is, denied and that the petition of Rose Fen Mack for conditional cross-review be, and the same is, denied.

Dated: March 18, 2014

BY THE COURT:
Lone S. Gildea Chief Justice”

 

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Note: References to “divorcebook.html” mean http://www.BillMcGaughey.com/divorcebook.html. This web site is broken down by chapter.

(L) RESPONDENT’S MOTION TO ELIMINATE SPOUSAL MAINTENANCE AND COURT DECISION

 

(50) Respondent’s Motion to Modify Spousal Maintenance (September 25, 2014) See divorcebook.html, chapter 78.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN Judicial District: Fourth
Court File Number: 27-FA-11-2008
Case Type: Dissolution without children

In Re the Marriage of:
Rose Fen Mack Petitioner NOTICE OF MOTION AND MOTION
and TO MODIFY CHILD SUPPORT AND/OR
Chester Arthur Mack, Jr. SPOUSAL MAINTENANCE
Respondent

Notice


To: Rose Fen Mack, 2xxx Corn Court, Herndon, VA 20171

PLEASE TAKE NOTICE that the undersigned will bring a motion before the Honorable Judge Stephen Jensen in Room 517 on December 1, 2014 * at the Family Justice Center County Courthouse or Government Center located at 110 S. 4th Street in the city of Minneapolis, Minnesota, (check with the court clerk at the hearing location for the room number), and will ask the court to modify the existing child support and/or spousal maintenance order as requested int he following motion.

(handwritten by judge) This is a written submissions motion date only. No in person appearance is required.

I request that the court modify the support order dated December 28, 2012.

by ordering the following: Decreasing spousal maintenance

The facts upon which I base my request are set forth in the attached Affidavit in Support of Motion to Modify Child Support.

Notice of Rights to Other Party

* You have the right to object or respond to the changes I am requesting.

* If you decide to respond or object to this motion, a packet entitled “Response to Motion to Modify Child Support and/or Spousal Maintenance” is available from court administration.”

* If you choose to respond, a written response, along with your financial affidavit for child support, must be served upon all parties and filed with the court at least 5 days before the scheduled hearing. If you choose to serve and file a counter motion, the counter motion must be served upon all parties and filed with the court at least 10 days before the scheduled hearing. A counter motion is where you can raise new support or maintenance issues, in addition to responding to the issues raised in this motion.

* The court may, in its discretion, not consider any documents you file with the court if they are not filed on time.

Settlement

This matter may be settled without a court hearing if the parties reach an agreement. To discuss a possible settlement, con tact the following person at the phone number listed: Chester A. Mack , Jr. at 612-374-xxxx.

Acknowledgment by Party Making Motion:

I am not serving or filing this document for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

The court may impose an appropriate sanction upon the attorneys, law firms, or parties that violate the above stated representation to the court, or are responsible for the violation.

I understand that the existing order remains in full force and effect and I must continue to comply with that order until a new order is issued.

Dated: Sept. 25, 2014 Respondent signed and gave address and phone number.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN Judicial District: Fourth
Court File Number: 27-FA-11-2008
Case Type: Dissolution without children

In Re the Marriage of:
Rose Fen Mack Petitioner

and

NOTICE OF MOTION AND MOTION
TO MODIFY CHILD SUPPORT AND/OR SPOUSAL MAINTENANCE

Chester Arthur Mack, Jr.
Respondent

STATE OF MINNESOTA )
COUNTY OF HENNEPIN ) SS

My name is Chester Arthur Mack, Jr. I state under oath the following information: Reasons why the existing order should be changed

I request a change in the existing order because of: Substantially increased or decreased needs of the Obligor.

I make the following other comments in support of my request for a change to the existing support/ maintenance order: See typed statement.

Information of from existing order. The existing support/maintenance order was issued by the court in Hennepin County and is dated December 28, 2012, In that Order, I am the Obligor.

At the time the existing order was issued, I was unemployed.

At the time the existing order was issued, to the best of my knowledge, the other parent was: unemployed.

At the time the existing order was issued, the joint children received monthly social security or veteran’s benefits in the amount of $0.

I am currently: divorced

9. I am currently: unemployed
I previously employed by self-employment for 20 years prior to the above employment.

I have the following sources of income: per year

self-employment $ -14,109 (loss)
other $202 income tax dividend income for last year

I am currently ordered to pay monthly spousal maintenance. YES If yes, how much? $500.00/month

I support the following nonjoint children: none

15. My monthly expenses at the present time are as follows:

monthly payment at the present time

House payment $845
Real estate taxes $60
Insurance:
homeowners $90
car $60
utilities
gas $150
electricity $30
telephone $40
water and garbage $60
cable TV $20
food $100
g. clothing $20
laundry/ dry cleaning $5
personal allowances $20
unreimb. medical expenses $130
transportation expenses:
license $5
gasoline $115
repairs $40
recreation/ entertainment $50
other: interest, home maint. $230

charge accounts & loans (list):
See schedule
balance owed

total monthly expenses $2,070

16. The following people help me pay my current monthly expenses listed in question 15: no one

17. The value of the property I currently own by myself or with someone else is:

Home $160,000
Household goods $4,000
Purchase price of home $21,000
Balance owed on home $58,000
Other real estate $660,000 ($170,000 owed)
Checking/savings $100
Automobiles $1,000 year & make: 2001 Pontiac, 1995 Mercury
Personal property $5,000
Stocks/bonds $19,800

Current information about the other parent: unknown

To the best of my knowledge the other parent has the following additional sources of income: unknown

The information contained in this Affidavit is true and correct to the best of my knowledge.

Dated: September 25, 2014 signed by Respondent in presence of a notary

 

Affidavit in Support of Motion to Modify Child Support and/or Spousal Maintenance

2. I make the following other comments in support of my request for a change to the existing support/maintenance order:

I am requesting that the requirement to pay my former wife $500.00 per month in spousal maintenance be entirely eliminated. The reason is that I am experiencing a sharp increase in monthly expenses beyond my normal personal needs that is caused by the heavy debt assigned to me (and the accompanying interest payments) in the judge’s order. To eliminate the requirement to pay $500.00 per month in permanent spousal maintenance will give me a chance to achieve financial stability.

At the time of the divorce (4/15/11) my wife and I had $329,732 in debt (both mortgage and credit cards) of which all but $5,000 was marital debt. Judge Jensen ordered me to assume all but $5,771 of this amount. I was therefore saddled with approximately $325,000 in interest-bearing debt. On the income side, I had slightly more than $2,000 in monthly retirement income and a rental-property business that consistently lost money. There was no realistic way to service this debt.

At the present time, my total indebtedness has risen to $395,137. Some repair work still needs to be done on damage to my home through a fire that occurred in January 2013. The increase in debt is due mainly to the need to make payments on the debt which currently amount to $6,169 per month. See accompanying schedule. There is no doubt that the need to pay $500 per month in permanent spousal maintenance has also contributed to my financial distress.

Paragraph 59 of Judge Jensen’s order states: “Petitioner seeks spousal maintenance while Respondent makes no such request. Spousal maintenance is paid out of future income and earnings. There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.” In this case, it is clear that there has been no “future income and earnings” but instead a continuation of annual losses caused by the need to service the crushing debt.

I have now reached the limit of my credit. In fact, my situation has become so dire that I can no longer make mortgage payments on the duplex at 1715 Glenwood Avenue in Minneapolis. It is headed for foreclosure. I am three months behind in making payments to Boundary Waters Bank, which holds the mortgage.

I have recently concluded an agreement with a non-profit Debt Management organization in Omaha, Nebraska, “Credit Management Advisors”, which will help me manage $156,610 of the non-mortgage debt. The agreement requires me to pay $1,709 twice a month (a total of $3,418 per month) for an estimated 58 months. If I am able to stick with this program, I should be down to a manageable debt load in five years. I will still have to pay the mortgage on my house at 1702 Glenwood Avenue and the $10,000 Wells Fargo line of credit. If the duplex goes into foreclosure, I may be free of much of this debt but will also lose a major source of income.

Clearly, the obligation to pay $3,418 per month to Credit Management Advisors is an expense that the court did not foresee when the order for permanent spousal maintenance was issued in December 2012. The new situation warrants reconsideration of that award.

the existing order

Judge Jensen’s order dated December 28, 2012, stated:

“CONCLUSIONS OF LAW

II. SPOUSAL MAINTENANCE

Commencing August 1, 2012, as for permanent spousal maintenance, Respondent shall pay to Petitioner the sum of $500.00 per month, payable in two equal installments on the first and fifteenth days of each month, until the earlier of the following:

Death of Petitioner;

Death of Respondent;

Remarriage of Petitioner;

Further order of the Court.”

I am requesting that this order be ended by further order of the Court.

I had petitioned the court to limit the spousal-maintenance award to six additional months. Judge Jensen rejected that request saying in his memorandum: “Conclusion II- Maintenance I ordered Respondent to pay $500 per month in permanent spousal maintenance. He asks that I limit his $500 monthly obligation to just (six) months. This I cannot do because subdivision 3 of section 518.522 states that, ‘Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for future modification.’ (emphasis added) No credible evidence was adduced at trial upon which I could find with certainty that the Petitioner’s need for maintenance will disappear after six months and thus Conclusion 1 will not be amended as Respondent requests.” (See exhibit, page 16 memorandum.)

Both statute and Judge Jensen’s own statement seem to encourage a future motion to modify the spousal-maintenance award when the situation of either party is substantially changed in the future. I would note that, in addition to considering the situation of the party receiving maintenance, statute 518.522, subdivision 2 (g) requires the court to take into consideration “ the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.” I cannot meet my own needs and continue to pay $500 per month in spousal maintenance.

I have faithfully made all the payments for spousal maintenance required by the court, starting October 1, 2012, for two full years. Surely this would be sufficient time for the recipient of this maintenance “to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment”, as the law contemplates. (518.522, subdivision 2 (b))

how the judge determined the amount of spousal maintenance

Judge Jensen ordered me to pay $500 per month in permanent spousal maintenance using a technique which might be described as “sharing the hardship”. This was justified by case precedent in Valenta v. Valenta and, especially, Parker v. Parker, where the trial court “made the parties share the pain on an equal basis.” (See footnote 3.)

Judge Jensen did not explicitly explain how he calculated a “pain-sharing” award of spousal maintenance in this case. However, in paragraphs 63 through 68 it may be inferred that the judge reasoned that the petitioner, my former wife, had a monthly income shortfall of $1,000 (based on zero income and a monthly need of $1,000 in expenditures excluding rent) while my monthly income and expenses were in balance at $2,000 apiece. Therefore, a payment of $500 per month from me to her would equalize our financial situations, both being short $500 of our expenses. (See paragraph 68.)

I would note that the information for the judge’s determination of my former wife’s monthly income and needs comes from some place other than the exhibit that she presented at trial. “Rose Mack’s living expenses” are shown in Exhibit 5 according to “Petitioner’s Exhibit List”. According to this exhibit, Rose had total monthly expenses of $1,850 which included $800 in rent paid to her daughter. (Judge Jensen disqualified the unpaid rent as an expense.) This left $1,050 for monthly expenses. The same schedule reports “$400 USD” for monthly income. Putting these two numbers together, we would have a monthly income shortfall of $650 rather than the $1,000 used in the judge’s calculation.

With respect to my own income and expenses, Judge Jensen wrote in paragraph 64: ”Although Respondent did not offer any trial evidence regarding his monthly budget or ‘needs’, Petitioner introduced into evidence his interrogatory answers which revealed a $2,070 monthly needs budget (Ex. 24A, answer to #13.)” (See exhibit, page 12.) The Petitioner’s Exhibit List does not include an Exhibit 24A; however, I confirm that my answer to question #13 does indicate a total expense of $2,070.

The judge did not cite a source for asserting that my monthly income was $2,000. This is inaccurate for at least two reasons: (1) My income should include, besides the retirement income, (1) the losses from my rental-property business that were shown in our income-tax returns for five years (Petitioner’s exhibits 14 through 18) and (2) the monthly interest payments which, according to my testimony presented at trial, exceeded the monthly retirement benefit.

Yet, even if we ignore these important facts, the “sharing the hardship” calculation would have required a $290 payment from me to her, rather than a $500 payment, so that we would both have an income shortfall of $360 per month. ($650 - $290 = $360, ($70 + $290 = $360).

Now there is hard evidence that my monthly expenses include an additional $3,414 needing to be paid to the debt-management firm. Not only is this amount less than the debt payments that I currently make, but it will liquidate the debt after five years. If the judge had included this payment in my monthly expenses and assumed a $2,000 monthly income, I would have had monthly expenses $5,484 which, assuming $2,000 in monthly income, would have left an income shortfall for me of $3,484 per month compared with Rose’s monthly shortfall of $650.

Instead of asking that the “sharing the hardship” amount be recalculated to my benefit, I ask merely that the spousal-maintenance award be ended.

Rose’s situation

Judge Jensen’s order is inordinately focused on my former wife’s situation, saying that the alimony award might be terminated if she dies or if she remarries or if I die. The fact is, however, that I will never know if she dies or remarries because there is no communication between us that would allow me to learn those facts.

I have learned through daughter Violet and attorney Lynda Wong that Rose is spending much of her time in China, if not living there, although she makes occasional trips back to the United States. In that case, she would most likely be employed. Would not robust employment in China also be a reason to terminate the alimony payment from me to her? It certainly negates the judge’s reasoning that Rose would never find suitable employment because she does not speak English, “even to a moderate degree”.

No testimony was given at trial regarding Rose’s previous employment in China. In fact, Rose’s attorney objected to the question when I asked about her Chinese employment in my interrogatories, saying the question was irrelevant. Judge Jensen merely assumed that her employment history was deficient. No time was allowed at trial for testimony about this.

In fact, however, Rose had been general manager of hotels in both Shandong and Hainan provinces before she came to America, supervising hundreds of employees. At the time of our marriage in January 2000, she headed the hotel division of the China Everbright Corporation, China’s first corporation. (See copy of her business card in exhibits.) As the daughter of a high-ranking military officer from revolutionary times, she has numerous friends in high places some of whom offered her high-paying jobs even while we were still married. She has the ability, contacts, and experience to land a good job in Beijing. She also has two apartments there.

When I first sent checks for spousal-maintenance to Rose at her residence in Herndon, she would endorse them when they were deposited in Rose’s and Violet’s joint account at the PNC bank. Later, the checks were deposited in the bank without an endorsement. Violet pressed me to do a direct deposit from my bank to hers; no signatures are ever required in that situation. I would never know if Rose was in the United States.

If Rose is living in China, does Violet send the $500 each month to her mother in Beijing; or is the spousal maintenance simply extra income for Violet (who paid most of her mother’s attorney fees)? This is not what spousal maintenance is meant to be. The maintenance award assumed that Rose would be residing in the United States and would be needing this money for her own living expenses.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN Judicial District: Fourth
Court File Number: 27-FA-11-2008
Case Type: Dissolution without children

In Re the Marriage of:
Rose Fen Mack Petitioner

and


LIST OF SUPPORTING DOCUMENTS


Chester Arthur Mack, Jr.
Respondent

I am submitting the following documents as attachments to my Affidavit or

# or letter description

1 Relevant passages from Judge Jensen’s amended order 12/28/12
2 Information about the parties’ income and expenses in 2011
3 Chester Mack ’s 2013 federal income tax return
4 copies of recent credit-card and mortgage statements w/ summary
*5* signed debt-management agreement Credit Advisors Foundation *
6 copy of Rose Mack ’s business card at the time of marriage Jan. 2000
7 Chester Mack ’s most recent bank statements

* At this time I only have a copy with my signature, I will bring an updated version to the hearing with their counter signature. (not available now)

Dated: Sept. 25, 2014 signed by Respondent

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN Judicial District: Fourth
Court File Number: 27-FA-11-2008
Case Type: Dissolution without children

In Re the Marriage of:
Rose Fen Mack

petitioner

and

CONFIDENTIAL FINANCIAL SOURCE DOCUMENT
and (also known as Form 11.2) Minn.Gen. R. Prac. 11.03

Chester Arthur Mack, Jr.
Respondent

THIS FORM LISTING CONFIDENTIAL FINANCIAL SOURCE DOCUMENTS IS ACCESSIBLE TO THE PUBLIC, BUT THE FINANCIAL SOURC DOCUMENTS SHALL NOT BE ACCESSIBLE TO THE PUBLIC EXCEPT AS AUTHORIZED BY COURT RULE OR ORDER

[Check only those boxes that apply]

income tax records year 2013
credit card statements August/September 2014
other signed agreement with Credit Management Advisors, a debt-management firm

Submitted by: Chester A. Mack , Jr.

signed by Respondent and dated 9-25-2014

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(51) Petitioner’s Response to Respondent’s Motion to Modify Spousal Maintenance (November 1, 2014) See divorcebook.html, chapter 78.

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN Judicial District: Fourth
Court File Number: 27-FA-11-2008
Case Type: Dissolution without children

In Re the Marriage of:
Rose Fen Mack Petitioner

and

PETITIONER’S RESPONSE TO MOTION
and TO MODIFY CHILD SUPPORT AND/OR SPOUSAL MAINTENANCE

Chester Arthur Mack, Jr.
Respondent

STATE OF MINNESOTA )
COUNTY OF HENNEPIN ) SS

My name is Rose Fen Mack I state under oath the following information: Reasons why the existing order should be changed

I request a change in the existing order because of: Substantially increased needs of the Obligee.

I make the following other comments in support of my request for a change to the existing support/ maintenance order: See typed statement.

Information of from existing order. The existing support/maintenance order was issued by the court in Hennepin County and is dated December 28, 2012, In that Order, I am the Obligee.

At the time the existing order was issued, I was unemployed.

At the time the existing order was issued, to the best of my knowledge, the other parent was: unemployed.

At the time the existing order was issued, the joint children received monthly social security or veteran’s benefits in the amount of $0.

I am currently: divorced

9. I am currently: unemployed
I previously employed by self-employment for 20 years prior to the above employment.

I have the following sources of income:

spousal maintenance $ 500.00
Chinese pension $473.00

I am currently ordered to pay monthly spousal maintenance. NO

I support the following nonjoint children: none

. My monthly expenses at the present time are as follows:

monthly payment at the present time

total monthly expenses $1,357

The following people help me pay my current monthly expenses listed in question 15: no one

The value of the property I currently own by myself or with someone else is:

Home $250,000
Personal property $4,000

Current information about the other parent: unknown
To the best of my knowledge the other parent has the following additional sources of income: unknown

The information contained in this Affidavit is true and correct to the best of my knowledge.

Dated: November 1, 2014 signed by Petitioner in presence of a notary

 

Additional Statement of Rose Fen Mack in Support of Response Motion to Modify Spousal Maintenance

Your Honor:

My name is Rose Mack. I do not agree with my ex-husband, Chester Mack, in the motion he has filed to stop spousal support payment to me.

Chester states that he has signed an agreement to pay off unsecured debt with a debt relief company, thereby increasing his monthly expense burden. However, according to the document (Exhibit 5) provided by Chester regarding his current income and debt obligations, there is no reduction in his ability to pay compared to when we got divorced in 2012.

Chester says he refinanced about $157,000 (first page of Chester’s typed statement and Exhibit 4, first page) with Credit Management Advisors. He says he must pay a total of $3,418 per month for 58 months. In Exhibit 5, he gives a copy of the agreement he signed with this company. On page 4 of this agreement, Chester states his monthly budget. He states his total after tax monthly income is $7,800. Chester then lists all of his expenses, including payment for two mortgages, spousal support to me his health insurance, and utilities, good, a debt not included in the debt agreement all together totals $4,287. So he has extra $3,513 left to pay the $157,000 unsecured debt.

If Chester did not sign this agreement with this debt relief company his total monthly payment for the unsecured debt according to spreadsheet on first page of exhibit 4, is $3,584.55. After signing this agreement, Chester’s monthly payment to this company is $3,418 for the unsecured debt. So he is saving $166.55 per month. Chester’s total monthly after tax income of $7,800 is enough to cover his monthly budgeted expenses and payment on the unsecured debt of $157,000. Therefore, I believe the reason put forth by Chester that he cannot pay alimony lacks credence and that he is trying to shirk his responsibility to me.

5. Chester says his total expenses have gone up to $6169 per month (first page of Chester’s typed statement), he fails to mention that his income is actually $7800. His statements are very misleading. For example, on page 3, #10 of his affidavit for his motion, he says his total source of income is $27,039/annual, and he has a -$14,109 in annual self-employment income. I understand Chester is allowed to take deductions for expenses related to his rental properties on his tax return, and therefore his tax return will show a loss. But that does not mean Chester does not receive monthly rental income from these rental properties. The fact that he declares $7800 as after tax monthly income proves this. Chester has always stressed that his income was just his social security and pension. That is just not true.

Our divorce decree ordered me to pay for $5976.67 of the US Bank loan,and my share of the Citibusiness card (but the decree did not state how much). Chester calculated my share of the Citibusiness was $2,794.04. I accepted this amount and since Chester was responsible for $3000 of my medical debt, we agreed the total amount I owed him for Citibusiness and US Bank was $5770.71. With my daughter Violet’s help, Chester agreed in an email for me to pay $106.28 per month, starting on August 1, 2014 for 60 months with 4% interest. Chester received first payment in August 2014. See attached bank statements from PNC and emails (6/23/14 and 6/24/14) about the proposed agreement between Violet and Chester. I am not sure if Chester included this information in his monthly gross income of $7800 to the debt relief company.

I remember during our divorce process, Chester repeatedly stated that the money he gave to the woman who lived downstairs from us was just lent to her, not a gift. Such a large sum of money would help Chester solve a lot of his problems. If Chester has the ability to be moneylender, then can he really not afford to pay support to me? Chester should be required to collect on those loans instead of trying to terminate spousal support to decrease his financial burden.

Chester should not be allowed to cease spousal support to me because he says he has more debts to pay. The court already took the amount of debt Chester is responsible into account when Chester was ordered to pay me the small amount of $500 per month. Chester should not be allowed to sue that as a reason to stop the support to me now.

I also want to point out that the monthly budget Chester provided in the agreement with debt relief company includes the mortgage on the 1715 duplex that he says he has defaulted on for three months. (first page of his typed statement). Also, Chester mentions he has had to do repairs due to a fire, but he never mentions any insurance money he may have gotten. (first page of his statement)

I will now talk about my own situation. As time passes, my medical condition is gradually worsening, and my medical expenses are constantly increasing.

I have applied several times in Virginia for affordable health insurance but have not been successful. I applied for President Obama’s health insurance, but they only gave me gynecological medical insurance. Virginia state does not provide for free or low cost medical insurance because I live together with my daughter.

So I still go back to China for treatment. Fortunately, I have my own place in China when I am there. Otherwise the cost of rent would be very expensive. This is the same apartment when I divorced and the court gave to me.

China’s medical insurance system for retirees like me, is such that the individual must pay all medical expenses for the first RMB 1,800 yuan ($294 US), meaning that to see a doctor for check-ups, medication, etc. medical insurance only kicks in after a patient has spent more than RMB 1,800 yuan ($294 US). Annual health care expenditures (including doctor’s visits, check-ups, tests, medication, etc.) are covered up to RMB 20,000 yuan ($3265 US), where patients pay out-of-pocket for anything more than what is covered by insurance. Some check-ups and medication are partially out-of-pocket, even before reaching the RMB 20,000 yuan cap ($3265 US). This does not include costs for hospitalization, which would be extra.

I receive treatments for hypertension, diabetes, coronary heart disease, and cancer. My medical expenses add up to about RMB 3000 yuan ($490 US) per month, or RMB 36,000 yuan (5877 US) per year. After deducting the RMB 20,000 yuan ($3265 US) per year which is covered by China’s retiree medical insurance, I personally am burdened with RMB 16,000 ($2612 US) each year, or RMB 1,333 yuan. This translates to about $218 per month, relying solely on the relatively cheaper Chinese medical system.

I have been told that a new lesion was discovered in my body.